Right to Rent – what is the latest for agents?

Right to Rent – what is the latest for agents?

26 November 2021

One of the most controversial pieces of legislation that has been introduced in recent years, further complicated by Covid and Brexit, is Right to Rent, which some claim makes landlords and letting agents de facto border guards.

Here, we take a quick look at its history, changes brought about by the pandemic and the UK leaving the EU, and the current state of play.

A short history – when were checks first introduced?

Following a trial in the West Midlands, the Government of the day – led by David Cameron and George Osborne – made it an obligation in early 2016 that all landlords in England must check that new tenants have the right to be in the UK before renting a property to them.

Since the 1st of February 2016, under the Immigration Act 2014, all landlords must check the right of potential tenants to be in the country or face being hit with a penalty of up to £3,000 per tenant.

The policy was introduced as part of the Government’s reforms ‘to build a fairer and more effective immigration system’. However, some have criticised it for creating a hostile environment, arguing that landlords now have too much responsibility to monitor the right to reside.

Under Right to Rent, landlords must check identity documents for all new tenants and take copies. Landlords can use a range of commonly available documents.

The checks are backed up by codes of practice, including guidance on avoiding unlawful discrimination drawn up with the assistance of the Human Rights Commission.

If a potential tenant has an outstanding immigration application or appeal with the Home Office, landlords can check that person’s ‘right to rent’ via the Landlords Checking Service.

What changed as a result of Covid?

As a result of the pandemic and the rules to avoid face-to-face contact as much as possible, the Government temporarily adjusted right to rent checks to make them easier for landlords and letting agents to carry out remotely.

This happened at the start of the pandemic and has been extended several times since, most recently, until the 5th of April 2022.

The Government said it decided to defer the end date – which was supposed to be at various points in summer 2021 – following the positive feedback about the ability to conduct checks remotely. Some have called for the changes to remain in place given their success.

The Government said it initiated a review of the availability of specialist technology to support a system of digital right to rent checks in the future. This would introduce a new digital solution to include many who can’t use the Home Office online checking service, including UK and Irish citizens. This would enable checks to continue to be conducted remotely but with enhanced security.

The following temporary changes were made on the 30th of March 2020 and will remain in place until the 5th of April 2022:

  • Landlords and agents can carry out checks over video calls
  • Tenants can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
  • Landlords should use the Home Office Landlord Checking Service if a prospective or existing tenant cannot provide any of the accepted documents

Nevertheless, the Government insists checks continue to be necessary, and landlords or agents must continue to check the prescribed documents set out in Landlords Guide to Right to Rent or use the Home Office right to rent online service. It also reminds landlords and agents that it remains an offence to knowingly rent to someone who doesn’t have the right to rent in England.

How should an individual’s right to rent be checked at present?

The Government says that, when checking an individual’s right to rent during the temporary Covid-19 measures, those carrying out a temporary adjusted check must:

  • Ask the tenant to submit a scanned copy or a photo of their original documents via email or mobile app.
  • Arrange a video call with the tenant – ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
  • Record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to Covid-19”.
  • If the tenant has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system, you can use the online right to rent service while doing a video call – the applicant must permit you to view their details.

The Government says its Home Office right to rent online service gives landlords a defence against a civil penalty. In these cases, you don’t need to see or check the individual’s documents, as right to rent information is provided in real-time directly from Home Office systems.

However, landlords or their agents must not insist that individuals use this service or discriminate against those who choose to use their documents to prove their right to rent.

If a tenant can’t provide the correct documents to prove their right to rent, landlords must contact the Home Office Landlord Checking Service.

What about retrospective checks?

Initially, the Government said it would require retrospective checks on everyone who had been checked remotely during the pandemic, but it soon went back on that plan.

It now says landlords or agents do not need to carry out retrospective checks on those who had an adjusted check, reflecting the length of time the adjusted checks have been in place and to ‘support landlords during this difficult time’.

What is the future for Right to Rent checks?

The Government insists that the temporary adjusted checks will end on the 5th of April next year, but it has already extended the end date several times. It may be encouraged to do so again or entirely change the way checks are carried out, given the positive feedback and the success of the remote system during the pandemic.

It says it will issue new guidance before the 6th of April 2022, but for now, landlords and agents should stick to the rules and processes they have been following since the adjusted checks were introduced right at the start of the pandemic.

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