Right to Rent: How Has The Law Changed?

What is a right-to-rent check?

In England, it is the duty of every landlord to restrict unauthorised persons from entering the private rented housing market. To ensure that no potential adult tenant is barred from renting a property mid-agreement due to their immigration status, you conduct right-to-rent checks on each one of them before the start date of a tenancy agreement.

How did COVID-19 alter the right-to-rent process for tenants?

The government imposed severe restrictions, including complete lockdowns, when the COVID-19 pandemic hit the UK. The government put in place measures to allow the Right to Rent checks to be conducted virtually as restrictions were loosened and businesses could operate normally once more.

Agents and landlords were allowed to conduct "adjusted checks" over video calls between March 2020 and September 2022. Video calls used to conduct checks outside of this time frame will not be considered compliant.

The tenant was required to hold up their original documents to the camera for verification during a provisional Right to Rent Check that the government permitted landlords and agents to conduct via video call. The use of Identification Document Validation Technology (IDVT) was also authorised for the checks.

The "right to rent" checks were modified to allow for electronic completion on March 30, 2020, in response to the Covid pandemic. On September 30, 2022, these interim measures came to an end. Therefore, as of October 1, 2022, landlords and agents must either resume in-person checks or enrol in one of the proptech service providers that has been granted IDSP ("digital identity service provider") status by the UK Government. The updated "right to rent" check requirements are summarised below.

What has changed since October 2022?

An electronic copy of the applicant's valid identification could be used to conduct right-to-rent identification checks during the coronavirus epidemic. The individual giving the occupation might then use a live video call to verify the person's identity.

The digital documents component of this process is no longer allowed as of October 1, 2022. To complete the check, an applicant must now deliver the original paperwork to the agent or landlord in person, but this can still be done by a video call.

According to the Landlord's Guide to Right to Rent Tests, landlords must do one of the following prescribed checks before the leasing agreement begins as of 1 October 2022:

a manual right to rent check, a right to rent check using IDVT through an IDSP, or an online right to rent check from the Home Office.
The people who had a COVID-19 modified check between 30 March 2020 and 30 September 2022 are not subject to retrospective checks.

Read the government's right to rent guide for landlords here.

Requirements

All landlords/agents are required to:

• Conduct a "right to rent" check on every adult tenant who intends to make the rental property their primary or only residence.
• Ask the tenant for original documents proving their legal right to be in the UK. These must be checked in person with the tenant present. There is no need to conduct a follow-up investigation if a tenant can present any of the records proving that they have an unrestricted right to rent (such as a British or Irish passport).
• Additional documentation will be needed if a tenant asserts they have an unrestricted right to rent but is unable to produce certain documents supporting this claim.
• It's possible that the tenant's right to rent is only temporary, in which case a landlord will need to conduct a follow-up inspection when the time is right.
• Make copies of the original paperwork and note the completion date of the check. After the tenancy agreement expires, they should keep copies for at least a year before destroying them.
• Follow-up checks should be done when necessary (for instance, when a tenant's visa expires).

How to conduct the ‘right to rent’ check

The "right to rent" checks can be done in a number of different ways.

These include:

• Manually in person,
• electronically using the Home Office service, or,
• using identification technology through an IDSP.

If a tenant possesses a biometric residency card or permit, has an EU settled or pre-settled status, or has applied for a visa and scanned their ID using the UK Immigration "ID Check" app, the landlord or agent is required to conduct an online right to rent check.

They do not need to carry out an online check in any other circumstances.

Retrospective checks will not be required on biometric card holders who, before 6^th April 2022, used their physical card to demonstrate their right to rent.

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When to carry out the Right to Rent check

Prior to the tenancy agreement's start date, the right to rent check must be completed. The check must take place at any time prior to the start date of the tenancy if the tenant has an unlimited right to rent. If the tenant's right to rent is time-limited, the check must be made 28 days before the first day of rent.

The impact of Right to Rent checks on subletting

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It is a tenant's responsibility to conduct a Right to Rent check and preserve the results prior to the occupant moving in if they are subleasing the rental property. If they don't, they'll be responsible for any penalties or enforcement actions. A tenant can request that the landlord perform the checks on your behalf; however, such a request must be made in writing, and a copy must be kept as proof.

What happens if a tenant is rejected because of their immigration status?

Your might receive notification from the Home Office that a resident at your property is not eligible to rent because of their immigration status.

In these situations, landlords must either serve a notice requesting the tenant's departure or take reasonable steps to terminate the tenancy. Occupants must give at least 28 days' notice before leaving a property.

Landlords are required to give any disqualified tenants a notice requiring them to vacate the property within 28 days if there are both legal and illegal tenants residing there. They can then transfer the lease to one or more surviving adult occupants who have a Right to Rent, allowing the remaining legal tenants to keep their tenancy.

Right to Rent for overseas tenants

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Landlords may agree to a tenancy in principle if you are attempting to arrange one from abroad, subject to an ID check upon arrival. Tenants won't be able to rent a home in England if you can't present the recognised documents proving theirr identity and authorization to reside in the UK.

A request to the Home Office

Your letting agent can ask that the Home Office conduct the Right to Rent check if they are currently holding your documents due to an active application or an unresolved case or appeal. You can do this by calling the Landlords Helpline at 0300 069 9799 or completing an online form. They will need your Home Office reference number to complete this.

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