Helping people with 'right to rent' checks

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'Right to rent' checks - what are they?

Private landlords in England (but not Wales) are required to check the documentation of new tenants and other adult occupiers, to establish if they have a ‘right to rent’ under the housing provisions of the Immigration Act 2014 (‘the Act’). Under sections 33A-33C of the Act the landlord (or their agent) commits a criminal offence if s/he lets a property to someone s/he knows does not have the right to rent.

If the Home Office notifies the landlord in writing that all the occupiers no longer have the right to rent, the landlord can end the tenancy without a court order by serving notice on the tenant or joint tenants (section 33D). If at least one (but not all) of the occupiers does not have the right to rent, the landlord can serve notice (form 3) on the tenant and apply to the court for possession (Housing Act 1988, schedule 2 ground 7B for an assured tenancy). A similar procedure also applies to Rent Act protected tenancies (Rent Act 1977, schedule 15, case 10A). This process applies to all non-secure tenancies including those started before the right to rent came into force.

To avoid incurring a financial penalty or committing an offence, landlords must carry out document checks on prospective tenants before granting a tenancy and in the case of existing tenants/occupiers with a time-limited right to rent, they must repeat the checks at least once a year. These checks must be conducted in a way that complies with the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 (pdf) (called here ‘the Prescribed Requirements Order’). The requirements of this order and guidance from the codes of practice made under it are described below.

Which lettings are affected?

The right to rent rules about checking on new tenancies apply in England to nearly all tenancies, licences, sub-lets, lodging arrangements and leases of under seven years, made on or after 1 February 2016. The arrangements apply to all residential lettings where a charge is made for occupation (section 20). A tenancy would normally be in writing, but tenancies just from verbal agreements or which have been created simply by accepting rent are included. In practice, this means that the right to rent provisions apply to all private sector residential tenancy agreements unless they fall within one of the exclusions set out below.

Which lettings are excluded?

Excluded lettings are set out in schedule 3 of the Act as follows:

• Housing provided by local authorities and housing associations through homelessness or allocations procedures. This refers to any council letting (under a secure, introductory or non-secure tenancy or licence), or accommodation let by a private registered provider following nomination by the council through its allocation scheme or under a homelessness duty. But if the local authority simply advises a person to apply direct to a landlord, or if the landlord (private or housing association) lets via its own waiting list, allocation scheme or arrangement then that letting is not excluded and checks are required. Lodgers taken in by council or housing association tenants are also not excluded.
• Care homes, hospitals, hospices and other healthcare provision: this includes any accommodation provided by the NHS to discharge a duty they have towards the occupier, so this might cover a hostel for a person recovering from illness, but it would not cover nurses’ accommodation.
• Hostels and refuges. A hostel is defined as a place offering non-self-contained accommodation and board (or provision for food preparation) that is either run on a not-for-profit basis and funded at least partly by a government or a local authority, or run by a housing association, voluntary organisation or charity. Examples include bail hostels, night shelters or similar. A refuge does not have to be non-self-contained, should be run on the same basis as a hostel, and be for people fleeing violence or abuse.
• Local authority provision for the homeless. Accommodation let by a private landlord but arranged by a local housing authority in performance of any duties or powers to applicants for homelessness assistance (Part 7 of the Housing Act 1996).
• Accommodation arranged by a local authority in performance of its statutory duties or powers. The accommodation may be provided by a private landlord or housing association, such as accommodation arranged under the Children Act 1989 duties or Care Act 2014 duties
• Home Office accommodation for migrants. The Home Office provides accommodation for people claiming asylum and certain other migrants, via contracted suppliers.
• Mobile homes as defined by Mobile Homes Act 1983.
• Tied accommodation provided by an employer to an employee or trainee.
• Student accommodation where this is in a hall of residence, a home provided via a nomination by an educational institution or in a building used mainly for student accommodation and managed by an educational institution or similar or a charity. (Note therefore that student accommodation in the private rented sector is included in the scheme and checks are required.)
• Leases for terms of seven years or more.
• A tenancy that began before 1 February 2016. This includes an agreement that has been renewed where the original began before then. In Birmingham, Wolverhampton, Dudley, Sandwell and Walsall the letting is excluded if it began before 1 December 2014.
• Non-residential lettings, for example holiday accommodation: the Home Office guidance suggests that any letting for three months or more would not be considered holiday accommodation.

For further details about letting agreements that fall within the scheme and the exclusions above see the Home Office guidance.

Which occupants must have a right to rent?

All adults, including

• Those liable to pay rent or occupation charges.
• Anyone else authorised to live in the accommodation by the agreement.
• Anyone else living in the accommodation even if not named in the agreement, if the agreement allows it. So this would cover, for example, a partner or friend who moved in after the agreement (although the landlord will not have committed a criminal offence if they can prove that ‘reasonable enquiries’ were made about who would be living in the home before the person moved in and so s/he did not know that the person without a right to rent was going to be in occupation).

The Act, section 20, explains the meaning of ‘residential tenancy agreement’.

How does it work?

Before allowing anyone to move in, the landlord must:

• check that prospective tenants and adult occupiers have the right to rent either by seeing documents or using the online checking service (see below)
• ask for proof of this
• make copies which must be kept for at least 12 months after the tenancy ends.

(The Act, section 24(2),(6),(7), the Prescribed Requirements Order (pdf), articles 3, 4, 5, 5A, 5B)

The landlord should also ask for proof of age if he suspects that any occupier is in fact over 18 but has said that s/he is younger (section 22(1), the Prescribed Requirements Order (pdf), article 5(c)).

The document check is intended to establish that they are in one of these groups:

• A ‘relevant national’ (Immigration Act 2014, s21(1),(5): this means a British citizen, an Irish citizen or an EEA national (or EEA family member) but only if
  • s/he has EU settled status or pre-settled status, or
  • s/he made an application to the EU Settlement Scheme which the Home Office is considering (whether it was in time or late) but has not yet finally decided (people with a Certificate of Application) (SI 2020/1209 regs 4 and 12).
• A person with a right to rent, as follows:
  • A person with an indefinite right to rent: someone with indefinite leave to remain or right of abode in the UK.
  • A person with a ‘time-limited right to rent’: someone who has limited leave to remain in the UK (other than EU pre-settled status).
  • A person with a ‘discretionary right to rent’: this is a get out clause. The Home Secretary can grant a ‘discretionary right to rent’, likely to be used for people who have no current leave but cannot be removed from the UK, or those who are waiting for a Home Office decision on their immigration status. The person will have to apply for it.

Anyone else should not be offered the accommodation. EEA nationals and EEA family members who enter the UK on or after 1 January 2021 must have a right to rent in the same way as any other foreign national who is from outside the EU. Any EEA national/EEA family member who entered the UK using their free movement rights before 1 January 2021 but who failed to apply to the EU Settlement Scheme by 30 June 2021 lost their right to rent on 1 July 2021, unless they made a late application which the Home Office has agreed to consider (recognised by a Certificate of Application). EEA nationals /family who failed to apply should get advice from an OISC registered adviser.

Long-term residents of the UK

The Home Office issued guidance in April 2019 in the wake of revelations about the problems faced by the ‘Windrush generation’. The guidance refers to ‘undocumented Commonwealth citizens’ or ‘Commonwealth citizens (known as "Windrush" cases) who are long-term residents of the UK but do not have documents to demonstrate their status.’ It states:

‘If a prospective tenant has lived in the UK permanently since before 1973 and has not been away for long periods in the last 30 years, they have the right to be here and to rent property.

‘If a prospective tenant came to the UK after 1 January 1973 then they might not have the automatic right to be here, but they may be allowed to stay here permanently and will have the right to rent property.’

However, it then asks landlords to use the checking service if they are concerned. The implication is that those covered by the rather vague definition of long-term Commonwealth residents do not need the documents otherwise required by the scheme. The current landlord guidance (see ‘Windrush generation’) suggests that vulnerable residents can get support from the Home Office Windrush Help Team or call them directly on 0800 678 1925, for example if they need to get new documents to prove their status.

People whose right to rent is time-limited

For those with a time-limited right to rent, landlords must make new checks after a year, or (if it is longer) just before the current period of leave in the UK or relevant document expires (section 27(4)). If the landlord finds out – either from those new document checks or in any other way or has reasonable cause to believe – that the occupier has no current leave or right to live in the UK, he or she must report it immediately to the Home Office (section 24(6)-(8)). If the landlord fails to report to the Home Office, then they will be committing a criminal offence (section 33A). It is a defence if the landlord can show they are taking reasonable steps to terminate the tenancy and evict the occupiers (s.33A(6)). If the landlord fails to make the necessary checks they are also liable for a civil penalty of up to £20,000 (sections 23 and 28).

What about lodgers?

The scheme covers all lodgers who pay rent, regardless of whether the person they lodge with is in one of the exempt categories such as being a council tenant. A lodger is someone who takes a room within a home that they share with their ‘landlord’ (who could be the owner or tenant of the property). Lodgers who pay money to live in a property as their only or main home fall within the scheme (section 20(2)-(4); Code of Practice, References, ‘Landlord’).

Responsibility for checking if a lodger has the right to rent rests with the person who provides the sub-tenancy or takes in a lodger. However, landlords (including social landlords) are advised to ensure that tenants are aware of these requirements as many are likely to be unaware of them and may breach the law by accident.

How do landlords check residency and immigration status?

Landlords are expected to check all prospective occupiers and avoid unlawful discrimination when conducting the checks. Advice about this can be found in the Home Office code of practice on Avoiding Unlawful Discrimination (6 April 2022).

Having the tenant’s documents checked is not itself sufficient to avoid liability even if the checks were carried out online. If a document (including a positive right to rent notice issued by the Landlord Checking Service) contains a photograph or date of birth, the landlord must satisfy themselves that the photo is of their tenant and that the birth date is consistent with their appearance (Prescribed Requirements Order (pdf), article 5).

The landlords' code of practice (February 2024) sets out the ways a landlord can conduct a right to rent check to avoid a penalty; these are:

• Physical document check. This can be used be used to establish a right to rent for tenants who are British, Irish, or other foreign nationals. However, the landlord must use the landlord checking service instead if:
  • the tenant has a biometric residence permit/biometric residence card (BRP/BRC) or
  • the tenant is from a country whose citizens are allowed to enter the UK using an electronic passport gate and who did so. The countries are the EEA member states and certain others (Canada, Australia etc.). These nationals can still use a physical check if their passport was stamped.
• Landlord checking service (LCS). The landlord checking service is an online service that can be used where a physical document check cannot be conducted because:
  • the tenant has a biometric residence permit or entered the UK using an electronic gate
  • the tenant’s documents are lodged with the Home Office pending a decision about their leave (including a review or appeal)
  • the tenant has an appeal about their asylum claim pending
  • the tenant’s application to the EU Settlement Scheme was made in time but has not been decided or they have a certificate confirming their late application was accepted or
  • the tenant has travel documents that were issued by the Isle of Man, Jersey or Guernsey authorities.

To use this service the tenant must give their consent and provide their Home Office reference number. If the check is successful, the landlord will receive a ‘Positive Right to Rent Notice’. If the LCS fails to respond within two working days, the landlord can proceed (Prescribed Requirements Order (pdf), arts 4, 5A, 6).

• Identity Document Validation Technology (IDVT). This is as an alternative to a physical document for tenants with British or Irish passports only. It negates the risk to the landlord of being caught out by forged documents. See landlords' guidance, Annex B for more details.
• Online right to rent checking service. This for non-UK/Irish nationals, it can be used if the tenant:
  • has a valid biometric residence card/permit
  • has EU settled or pre-settled status or
  • has been issued with an eVisa.

The check is started by the tenant applying for an online share code. The tenant shares this with the landlord who uses it confirm their right to rent. A share code is valid for 90 days and can be used multiple times.

At some future date (to be confirmed) it is expected that physical document checks will be phased out and only IDVT and online checks will avoid liability.

Planned changes to immigration documentation (eVisas)

Starting in 2024, UK Visas and Immigration (UKVI) are phasing out physical documents as evidence of a person’s right of residence and replacing them with an online record. Biometric Residence Permits and Biometric Residence Cards (BRP/BRC) will be replaced by eVisas. From April 2024, BRP holders will be emailed with instructions on how to create UKVI account to access their eVisa. These email invitations are being sent in phases, before the service is made available to all BRP holders in the summer. You can find out more on the UKVI eVisas page.

Resources and services

Apart from conducting checks online there are other tools to help landlords with the right to rent:

• The Home Office has a question-and-answer checking service which asks about the status and documentation that the prospective tenant has, and landlords can enter ‘yes’ and ‘no’ replies. It takes the landlord through each stage – including help to identify if no check is required because the letting is excluded.
• There is guidance (with pictures) on the main types of documentation that prospective tenants might have, to show their status – it is also available in an Easy Read version (pdf). There is also guidance on examining identity documents (pdf), including detecting forgeries, but this dates from 2016 and landlords should be cautious about using it.
• The Home Office provide a telephone advice line: 0300 790 6268, or you can email a query to RighttoRentandRighttoWork@homeoffice.gov.uk.

Landlords can appoint an agent to do the checks for them but must do this by a written agreement that specifically covers the Immigration Act 2014 (section 25(2)). Where the landlord has contracted an agent then the agent is liable for any breach, except where the agent notified the landlord that a prospective occupier did not have the right to rent but the landlord allowed them to move in anyway (sections 24(2)(b),(5)).

What happens if things go wrong?

The scheme provides that landlords can be required to pay civil penalties and may also face prosecution. Sentences for criminal offences committed by landlords under this scheme can be fines or imprisonment or both. The civil penalties are set out on a sliding scale:

• The first breach (in the previous three years) incurs a fine of £5,000 for a lodger, £10,000 for a rented occupier. These are per person, so renting to a family of four adults would attract a first time penalty of £40,000 (Revised Code of Practice, from 8 February 2024).
• Further breaches incur fines of £10,000 per lodger and £20,000 per rented occupier (SI 2024/81 article 2, from 8 February 2024).
• Landlords who have leased premises to a person with no ‘right to rent’ may also be subject to criminal proceedings and face a prison sentence of up to five years (sections 33A and 33C(1)).

For the civil penalty process, the Home Office first issues a referral notice about the property and occupants, then an information request, which the landlord or agent can respond to, and finally the penalty notice, after which the landlord has 28 days to object to the penalty (section 28). Possible objections include: disputed liability (for example, the landlord does not own the property or the agent is liable), or a ‘statutory excuse’ (for example, the landlord can prove the checks were carried out or that the penalty is for the wrong amount) (section 29). The landlord can get a discount of 30% on the first offence by paying the penalty within 21 days or can challenge the penalty in court (section 30; Code of Practice, ‘fast payment option’).

For the criminal process, initially landlords do not commit an offence:

• if the landlord arranged in writing for a professional agent to conduct the checks on their behalf (in which case the agent is responsible) or
• if they conducted the relevant checks before the occupier moved in, and that person:
  • has an indefinite right to rent, or
  • has a time-limited right to rent or a discretionary right to rent and is still within the eligible period.

A landlord will commit a criminal offence if:

• S/he knew (or had reasonable cause to believe) that one or more of the adult occupiers did not have the right to rent, unless s/he can show they had taken reasonable steps to terminate the agreement within a reasonable period from the date they first became aware of the breach.
• After the occupation began, any one of the adults loses the right to rent and the landlord either knows that is the case, or has reasonable cause to believe that is the case, unless one of the following applies:
  • the landlord has notified the Home Office of the contravention; or
  • the contravention was the responsibility of the landlord’s agent; or
  • the adult has not yet lost the right to rent (but the Home Office had served a notice on the landlord anticipating that the right to rent would be lost).

These criminal offences can also be committed by landlords’ agents.

Guidance has been issued as to what these reasonable times and reasonable steps are. The guidance suggests that landlords:

• seek a mutual agreement with the tenant to end the tenancy and do this within four weeks
• see if the disqualified occupant can assign the tenancy to any other occupants who are not disqualified (and get rid of the disqualified occupiers) and do this within four weeks
• use a break clause in the tenancy or other provisions to bring the tenancy to an end and evict within three months
• if all of the occupants have no right to rent, use the procedure to end the tenancy without a court order by serving notice, wait for the notice period to expire and then evict 'peacefully' within 14 days, by applying to the High Court for a High Court enforcement officer to carry out the eviction, or
• if not all of the occupants are disqualified, serve the relevant notice and bring court proceedings for a possession order.

Advising migrants who might be affected by right to rent checks

The guide to checking documents has two lists:

• List A: proves the holder is a ‘relevant national’ or person with an ‘indefinite right to rent’: group 1: proved by a single document, group 2 for documents that will be acceptable if any two of them are produced.
• List B: proves the holder has a ‘time limited right to rent’ or a ‘discretionary right to rent’. These documents may have to be checked again during the tenancy.

The guide to checking documents (15 January 2024) has a examples of documents which prove a time limited right to rent as well as examples of documents which are no longer acceptable for the same purpose.

It is important to ensure that migrants looking for private lettings have these documents available relating to themselves and any adult family member, before applying for a tenancy. If the document is not a simple passport or otherwise obviously gives a right to rent, it might be helpful to know in advance which of the documents in the guide it is, so this can be pointed out to the landlord.

Being aware of potential discrimination

Despite the code, right to rent checks have been shown to increase discrimination against migrants trying to access rented housing, so advisers should:

• Ensure they have the relevant knowledge to advise on tackling discrimination.
• Consider how they might prove that discrimination has taken place (for example sending another, non-migrant ‘tenant’ to apply for the same flat or phoning to find out if it is still vacant if the migrant has been told it has gone: this is called situational testing and is acceptable evidence in discrimination cases).
• Be ready to open up discussions with the local authority about how they should tackle discrimination in this area and also plan for the possible homeless applications or requests for help from social services from eligible migrants who cannot get accommodation in the private rented sector.

Where a prospective tenant is eligible for help as homeless or to seek help from social services (as a household with children or an adult with social care needs) but is having difficulty proving their right to rent or finding a landlord who will accept them, it is important to note that tenancies provided on referral from housing or social services departments are not subject to right to rent checks, So an approach to the relevant local authority department may be an effective way to overcome that barrier. Social services should take into account the difficulties presented by the right to rent in deciding whether to offer support and provide accommodation - see R (on the application of U and U) v Milton Keynes BC [2017] EWHC 3050 (Admin).

Advising tenants who are served with a possession notice

A tenant, licensee or other residential occupier (other than an excluded letting) where one or more of the adult occupiers does not have the right to rent can be served with a possession notice by their landlord. Once the notice has expired the landlord can evict the tenant/occupiers after getting a court order, or in some cases without one, using the procedure under sections 33D or 33E as appropriate with or without and evicted with or without.

These types of eviction apply only in situations where the Home Office has sent the landlord a ‘notice of letting to a disqualified person’ (NLDP) (see landlord's guide) that the occupier/s are ‘disqualified’ from renting because of their immigration status. The procedure used (i.e. with or without the landlord getting a court order) seems to depend on whether the adult occupiers have responsibility for children. In parliament, during the debate on the legislation that would become sections 33D and 33E, the Minister said that the Home Office will consider the circumstances of each member of the family before serving a notice, and will have regard to its duty to safeguard and promote the rights of children.

Eviction without a court order

If a landlord receives a NLDP that all the occupiers are disqualified (and there are no children in the household/s) s/he can use the section 33D procedure as follows:

• The landlord serves notice on the occupants in the prescribed form laid out in the regulations
• The landlord must attach the notification/s received from the Home Office about the disqualification of all of the occupants.
• The notice must allow at least 28 days before the agreement ends.
• If the occupants dispute the disqualification, they must inform the Home Office of this within the 28 days to allow the Home Office to withdraw the notification. It is not clear what happens then.
• At the end of the notice period, the tenancy or licence has ended and there is no requirement for a court order to evict.
• The landlord may enter the premises and ‘peaceably’ remove the occupants or can ask for High Court bailiffs to do the eviction. This is because these circumstances are excluded from the normal requirement to obtain a possession order (Protection from Eviction Act 1977, s.3A(7D)).

If the landlord fails to take reasonable steps to end the tenancy within a reasonable time (see statutory guidance: ending a residential tenancy agreement) then they may commit a criminal offence (section 33A).

Eviction with a court order: assured and assured shorthold tenancies

If the landlord receives a NLDP from the Home Office that at least one but not all occupants are disqualified s/he can negotiate with those occupiers to leave and inform the Home Office that they have done so. If this fails s/he must use the procedure to get a court order within a reasonable time, or face possible criminal proceedings. To get possession of an assured or assured shorthold tenancy the landlord serves a notice using the mandatory Ground 7B (Housing Act 1988, schedule 2, Part 1, 'Grounds on which court must order possession').

If the tenant/s have an assured shorthold tenancy the landlord could use the section 21 procedure instead and start proceedings once the notice period has expired. However, this comes with the possibility that the Home Office might not consider the two-month notice period to be reasonable and therefore puts the landlord at risk of proscecution.

The procedure for using Ground 7B is:

• The landlord serves notice on the tenant/s or licencee/s in the prescribed form for the tenancy and with the relevant notice periods.
• The landlord must use the prescribed form of notice (assured tenancy form 3) and state that possession is sought using Ground 7B.
• If Ground 7B is the only ground for eviction, the notice period is two weeks, after which the landlord can start court proceedings to evict.
• The court will need to satisfy itself that the ground for eviction is made, so will usually need to see the landlord’s NLDP from the Home Office.
• If the court is satisfied that the grounds for eviction are made but at least one of the tenants/licensees is not disqualified and no other grounds have been sought it may order that the tenancy is transferred to the remaining non-disqualified tenants, instead of granting possession (Housing Act 1988, s.10A). It must exercise its discretion (i.e. to transfer or grant possession) reasonably.
• If all the tenants are disqualified persons Ground 7B is mandatory and the court must grant possession.

Eviction with a court order: Rent Act protected tenancies

A similar process applies if the landlord is claiming possession of a Rent Act protected tenancy (Rent Act 1977). However, there is no obligation on the landlord to have served a notice first and the court has no power to order a transfer of the tenancy but it must consider whether it is reasonable to make an order for possession.

What can advisers do for tenants threatened with eviction because of their immigration status?

These advice pointers are based entirely on the available legislation, guidance, etc. We welcome suggestions based on practice as it evolves!

• Check whether each tenant or other adult occupier is actually affected, i.e. is a disqualified person.
• Consider whether the tenant needs immigration advice, in which case it will need to come from an OISC regulated adviser.
• Check who else is living with the tenant: are there any children, or any adults who are not disqualified. If so, the only option for the landlord is to use the court eviction procedure.
• If the landlord is using the no notice procedure and there are no ‘qualified’ occupants or children in the household, check the notice is in the prescribed form, includes the notification from the Home Office and that all occupants are correctly identified in the notification.
• Work out with the tenant what s/he wants. If s/he is disqualified s/he may want to ask for a discretionary right to rent (and get advice on this) or may prefer to arrange to leave the home.
• If the tenancy is an assured or assured shorthold tenancy, and the notice is not in the prescribed form or has no notification attached, this is probably an illegal eviction attempt and should be treated as such. Help can be sought from the local authority.
• Are the facts in the Home Office notice correct? If not, then the occupant can tell the Home Office this and ask for the notice to be withdrawn. If the Home Office fail to respond the applicant needs urgent legal advice to start judicial review proceedings since there appears to be no other remedy. The judicial review claim would be brought against the Home Office, no later than three months from the date of the notification. If the landlord were intent on eviction in any event, then urgent legal advice should be sought as to whether an injunction could be obtained against the landlord.
• If there are children in the household, discuss with the tenant the options for seeking help from social services or any other options. In addition, make representations to the Home Office that the notice was served without proper consideration of the duty to safeguard and promote the welfare of children (Borders, Citizenship and Immigration Act 2009, s.55).
• If any adult in the household is eligible for homelessness assistance, help them to apply for it.
• If there are other tenants/licensees who are not disqualified, then consider whether they can take over the tenancy agreement. If so, explain this to the landlord and negotiate it, since this will avoid court costs for all parties.
• If the landlord refuses to transfer the tenancy agreement and issues proceedings relying on Ground 7B then arrange for court representation or help to argue for the tenancy to be transferred by the court. If the hearing is imminent, ask the court if it has a Housing Possession Court Duty scheme and arrange to see the duty advisor on the day.
• If the landlord is using the court eviction process but the tenant says that the notice from the Home Office is wrong (and has not been put right), then name the Home Office as an interested party in the county court eviction proceedings and present the evidence as to why the notice is wrong there.