Right to rent checks: Home Office update for landlords in England

Landlord right to rent checks – what are they?

All landlords in England must conduct a 'right to rent check' before leasing their property to a prospective adult tenant.

These checks apply to both British citizens and overseas nationals. At present, checks maybe carried out in one of four ways:

1) manually using original passports and immigration documents for tenants of all nationalities (with the exception of holders of e-Visas, a biometric residence permit ('BRP') or biometric residence card ('BRC'), for which the online right to rent check procedure must be followed); or

2) using an Identity Service Provider ('IDSP') and its Identity Document Validation Technology ('IDVT') to digitally verify a copy of a British or Irish citizen's passport and identity; or

3) online using a share code generated by a non-British/Irish citizen to verify their immigration status via the Home Office's 'right to rent check' online portal; or

4) using the Home Office's Landlord Checking Service, to obtain temporary confirmation of a migrant's right to rent if the outcome is a Positive Right to Rent Notice, for example while a tenant's UK immigration application is with the Home Office and awaiting a decision.

What are the consequences of non-compliance?

Failure to complete the checks prior to the tenancy commencing, or as a repeat check during a tenancy where the tenant is a migrant and their previous permission is expiring, could result in a civil penalty of up to £3,000 per tenant and possible criminal liability. Carrying out the correct right to rent checks at the appropriate time can provide the landlord with a 'statutory excuse', which is a complete defence against both civil and criminal liability where a migrant tenant is subsequently found to be in the UK without adequate permission.

Agents can complete the right to rent checks on a landlord's behalf where a clear agreement is in place between the landlord and agent setting out the agent's responsibility for conducting checks, when the checks should be undertaken and the agent's liability for non-compliance with the Home Office's right to rent check guidance in the event of a civil penalty being issued. Landlords may not transfer liability for a criminal offence to an agent.

Landlords are required to report any tenants to the Home Office via an online form where they believe a tenant no longer has valid immigration permission to remain in the UK.

Updates

On 28 February 2023 the Home Office updated its guidance to landlords on right to rent checks.

It is essential that landlords are aware of the changes and adjust their processes for verifying tenants' right to rent to ensure they remain compliant and avoid a civil penalty.

Key updates include:

•  the end of COVID-19 temporary remote 'adjusted' checks;
• clarification for landlords on the use of IDVTs and IDSPs and the use of 'Reusable Identities' for checks involving the use of IDSPs;
• updates on the list of acceptable right to rent documents that should be retained; and
• instructions on short-dated BRPs.

For further information as to how we can help please contact our UK Immigration team, or your usual Withers contact, call +44 20 7597 6000 or email enquiries.uk@withersworldwide.com.