The Right to Rent scheme - which requires landlords or agents to check ID of all prospective adult occupiers - was rolled out across England on 1 February 2016. Where an adult occupier has a time limited right to remain, landlords and letting agents will need to conduct follow up checks. These need to be made 12 months from the initial check or at the expiry of the individual’s right to be in the UK, whichever is the later.
ARLA have been part of the Landlord panel throughout development of Immigration Act 2014 and Immigration Bill 2015 and have delivered a series of events across England to support letting agents in complying with the legislation.
RIGHT TO RENT FAQ
We have worked with Home Office and UK Border Agency to answer the questions that are widely asked by landlords and letting agents.
What happens where I have a US citizen and her family moving to the UK? They are not visiting prior to arrival and need to agree a residential tenancy, ship their furniture and occupy on arrival?
Prior to any agreement for residential tenancy, the landlord or letting agent should conduct Right to Rent checks. In such a scenario as above, if the US citizen had a relevant visit visa and therefore a ‘limited’ right to reside in the UK (specifically in the implementation phased area), their visa will substantiate that. In practice, this will generally mean that the new tenancy agreement is subject to a condition that the Right to Rent checks are satisfied once the US citizen arrives in the UK.
I’m a law abiding agent organising a tenancy for a family moving from Australia in December. I meet all requirements of all legislation that I am asked to comply with. They will arrive at 7pm on a Friday evening. In reality, how do I deal with this?
As above. Prior to any agreement for residential tenancy, specifically in the implementation phased area, the landlord or letting agent should conduct right to rent checks before the prospective tenants are entitled to occupancy and the prospective tenants will be able to substantiate their right to reside through provision of their visas.
How should I carry out a check on someone who wears a headscarf or veil?
Individuals should be asked to show their face to check that it matches their facial image on their documents. Scarves which cover the hair need not be removed. Those conducting the check should offer the opportunity for the prospective tenant to show their face in a private area and/or in the presence of another female.
I have to use sub agents around the country to find my tenants and never see them face to face, how can I comply?
This is a very problematic area as the whole aim of the scheme is for a landlord or a delegated agent to do a quality face to face check. The 2014 Act only allows for a landlord to delegate to an agent. It does not allow for that agent then to delegate the checks and liability to yet another agent. The other alternative is that the first agent sets up a contractual relationship with the second agent in terms of the Right to Rent check. Contact the ARLA Legal Helpline 0330 124 1212 for advice.
What happens with company lets where we don’t know who the occupiers are? We let to the company who allow the current CEO etc to occupy on terms that are generally longer than three months?
In these circumstances, the agreement is with a corporate body and not directly with a ‘tenant’ (albeit the body can be a tenant). The body will have control over who may stay at the property, i.e. a form of licence and they will be the liable party. Employers already conduct right to work checks and are subject to civil penalties if it is found that they are employing illegal workers.
What happens if in Jan 2015 I take over responsibility for a property in the pilot area which is already let? If the landlord hasn't got evidence of checks to pass to me, do I conduct checks at that point? And if he does pass evidence to me, I still won’t have seen the original myself.
It depends on whether the tenancy (letting) was agreed before or after the implementation date of 1 December. If after the implementation date, it will be the person who granted the residential tenancy who is liable for a penalty where checks were not carried out and an illegal immigrant is found living in the property. That is, the previous landlord in the circumstances set out above. Where the new landlord has no evidence that checks that should have been conducted ever were, they should conduct fresh checks on the sitting tenants/occupants.
What if I have student occupiers from overseas arriving on different dates?
A check needs to be carried out on each adult occupier. If tenants are arriving from abroad at a later date than other occupants, they will need to pass a Right to Rent check before taking up occupancy.
If I acquire a property with occupying tenants and the date that they took up their tenancy with the previous landlord precedes 1st December therefore no checks were needed, do I now need to carry out ID checks because I have acquired the property or do I need to obtain and retain evidence from them that their tenancy started prior to 1 December 2014?
No, you do not need to carry out retrospective checks on tenants. It would be best practice that you would obtain evidence and details of the existing tenancy that has been taken over.
What are the Home Office doing to inform landlords directly?
The Home Office have been working with a wide variety of partners to publicise the requirements of the scheme to landlords and tenants. Within the Minister's implementation panel meetings ARLA has stressed the importance of raising awareness of the scheme with landlords, householders with lodgers and with tenants. The greater the number of tenants who expect checks, the easier it will be for agents to carry them out.
If I discover a prospective occupier with no right to rent in the UK and know their current address, an address that I am not responsible for, can I be liable for penalty if I do not make a report to the Home Office?
No, you would not be subject to a civil penalty for not making a report to the Home Office against an individual you have not rented to. You would only be liable for a civil penalty if you rent to a tenant where they have no right to rent in the UK (in the implementation phased area) and you knowingly did so.
How does this affect existing Housing Law? What are the implications for existing housing law in reality?
Landlords and lettings agents may wish to consider reviewing and amending the stock of contracts, terms and conditions that they use in day to day business. When updating your landlord Terms of Business don’t forget to include Right to Rent checks.
What if the landlord wants to discriminate against a prospective tenant?
Whether or not a person needs and has permission to stay in the UK and has a right to rent is a matter of fact that can be verified. Only the listed documents should be used to reach a decision. Checks should be performed without regard to race, religion or other protected characteristics or equality.
How do I know that the Home Office reference number that I have been given relates to the person in front of me? Can you give me a copy of the photo ID for the person that is the subject of the Home Office appeal?
The reference number will relate to an individual known to the Home Office and checks will be conducted against the details held on that individual. All positive results will be recorded and monitored so as to identify any instances where we suspect fraudulent activity.
If a guarantor’s visa expires mid tenancy does a check on renewal status still apply?
If the guarantor does not live in the property there is no stipulation from the Landlords Scheme perspective for the landlord to carry out a repeat check when their visa is due to expire. Though of course from a commercial angle they may want to do this – but that is your choice to mitigate against any risk. Of course if the guarantor lived in the property they would be subject to a repeat check just prior to their visa expiring.
Do all Diplomatic Passports give an automatic permanent or time limited Right to Rent, these are not mentioned on the document checklist.
These passports show that the holder is exempt from immigration control, so there is no requirement to carry out the check at all. This is why they do not appear on the document list, and the question of whether there’s a permanent or time limited right to rent falls away. As with the US AF personnel, landlords who see one of these documents need to be satisfied that the document is genuine and belongs to the holder. For reassurance you may wish to take a copy of the passport as evidence that you have ascertained that the person is exempt from the checking requirement, but you would not face a penalty for renting to someone who is not subject to control.
Delays with Biometric Residence Permits (BRP’s) which should be available within a month of entering the UK.
When someone enters the country with Entry Clearance they are given 30 days in which to collect a BRP, and a temporary permit in the meantime. If they need to rent during those 30 days they can use their temporary permit as evidence of a right to rent, and the landlord would then not need to check again for 12 months, at which point the BRP would be available. They also have the option of agreeing with their landlord to carry out the check again when they receive their BRP – this is not obligatory, but if the BRP is for a long or indefinite period it does avoid the need to come back again for a check at the 12 month point.