Advising on 'right to rent' checks

This page is for housing advisers. If you are a new arrival please click here for information more relevant to you.

This page aims to give guidance to housing associations on how 'right to rent' document checks affect their procedures, such as their allocations and lettings policies, their policies on lodgers and their procedures for verifying tenancies. Some aspects of the law are still unclear: where necessary the guidance below represents our current interpretation.

Separate pages cover the 'right to rent' generally, for tenants and for advisers.

The law and how it applies

The Immigration Act 2014 (part 3, chapter 1) places a duty on a landlord (or a tenant taking in a lodger) to carry out a 'right to rent' check on each letting. Failure to comply can result in a civil penalty. It is also an offence punishable with up to five years in prison if the landlord (including a director, manager or secretary) lets a property knowing or having reasonable cause to believe the applicant does not have the right to rent (Immigration Act 2014, s.33A-33C).

The legislation applies to the whole of the UK and is brought into force in each country by the Home Secretary (not the devolved administration). Currently the law is in force only in England.

In Scotland, Wales and Northern Ireland, until the legislation applies, housing associations must not conduct right to rent checks or otherwise reject direct applications for housing on the grounds of immigration status: to do so would almost certainly constitute unlawful discrimination. However, the courts have found that the right to rent scheme does not breach the Human Rights Act (articles 8 and 14): R (JCWI and others) v SSHD [2020] EWCA Civ 542.

Which landlords must carry out right to rent checks in England

The checks do not apply to any new letting or transfer made directly by or through the local authority (such as from the waiting list, via a nomination agreement or arising from a homelessness or social services duty). In relation to nominations, housing associations can rely on the LA performing its own checks on the eligibility of any nominee, so if there is an error clearly it is the LA's responsibility. In this sense nothing has changed from before right to rent began, since associations normally accept that any nomination is bona fide under the nomination agreement, including the entitlement to a tenancy.

Other exceptions include:

• any letting in a hostel, refuge or care home provided by a not-for profit body, or on a non-commercial basis and funded by a public body
• certain lettings made to students nominated by their educational establishment
• accommodation provided to asylum seekers via Home Office contracts
• lettings on 'long leases' (of over seven years), including shared-ownership tenancies
• tied accommodation (e.g. provided to staff in a care home or hostel)
• exchanges between existing tenants whose tenancies were originally exempt from the scheme (e.g. local authority nominees).

Other than the above, supported housing tenancies are not exempt although many will be LA nominations.

The checks apply to almost any other offer of accommodation made by:

• a private registered provider
• any other not-for-profit landlord (such as a charity)
• a private landlord
• a tenant or homeowner taking in a lodger (the tenant, not their landlord, is responsible, but liability may be reversed if the landlord has to give their specific consent)
• a landlord adding an adult to an existing tenancy to make it a joint tenancy: in such cases the checks will need to cover all tenants and adult occupants.

The landlord or person responsible for making the checks can appoint an agent to do them on their behalf, but this must be by a written agreement that specifically covers the Immigration Act 2014.

Responsibility for right to rent checks by housing associations

Any offer of accommodation made by a housing association (or 'private registered provider') other than one made through an agreement with a local authority potentially falls within the scheme. The overall result is:

• if all of your lettings are made through the local authority (such as through a common waiting list or 100 per cent nominations agreement) then you do not need to do right to rent checks (nor are follow-up checks necessary on people with limited leave to remain) (but see the checklist below).
• if some of your lettings are made through the local authority and the remainder are direct applications, then the right to rent checks apply to any direct applications
• in any other case (i.e. if you run your own waiting list) then the right to rent checks apply to all offers.

How to conduct right to rent checks

A right to rent check must be carried out for each adult occupier - not just the prospective tenant(s). For overall help, see our general guidance on document checks by landlords.

British and Irish citizens and people with EU settled or pre-settled status

British citizens, Irish citizens and any person who has EU settled or pre-settled status (including EEA family members who are not EEA nationals) are not covered by the Act, and so have an automatic right to rent regardless of their work or benefit status. This also applies to EEA nationals/EEA family members whose application to the EU Settlement Scheme has been accepted (whether it was in time or late) but which has not yet been finally decided (SI 2020/1209 regs 4 and 12).

However, even though these people have an automatic right to rent a document check is needed for all adult applicants to prove that they have this. It is recommended by the Home Office code of practice to demonstrate a consistent, non-discriminatory approach. Proof of age of older children in the household is also advised (to show they are exempt) (Prescribed Requirements Order (pdf), article 5). People who get EU settled/pre-settled status do not get a physical document (paper/plastic card) and must prove their status by using the online checking service.

Any EEA or Swiss national who entered the UK on or after 11pm on 31 December 2020 does not have the right to rent unless he or she has either limited or indefinite leave (including EU pre-settled or settled status) granted by the Home Office. EEA and Swiss nationals who enter the UK after 31 December 2020 by using an automated passport gate must use the online checking service to prove their right to rent (Prescribed Requirements Order (pdf), articles 3, 5B). But if they didn’t use an automated gate to enter they can prove their right to rent by showing their documents or use the landlord checking service.

All other foreign nationals

A person has an indefinite right to rent if:

• he/she has indefinite leave to enter or remain (settled status), or
• he/she is a citizen of a Commonwealth country with the right of abode in the UK (note that few people have this).

A person has a time-limited right to rent if s/he has limited leave.

A person has a discretionary right to rent if they are granted a discretionary right to rent from the Home Office even though they have no current leave. Typically, this will be granted to a person waiting for a decision from the Home Office regarding their immigration status (this includes asylum seekers) or a person who does not have leave but who cannot be removed, for example because they are appealing against a Home Office decision or awaiting a decision on whether they are a victim of trafficking.

You can find out if a person has the discretionary right to rent through the Home Office landlord checking service, giving the prospective tenant's name and Home Office reference number. Landlords are expected to make their own enquiry each time and not rely on any proof that the discretionary right to rent was awarded via a previous landlord.

Repeat checks

The requirement for landlords to make repeat checks on occupants applies only where they are known to have a time-limited right to rent. Landlords must record the date the eligibility period ends and conduct a repeat check in the one-month period before it expires. The date the eligibility period ends is whichever is the latest of:

• the date one year on from the date on which the checks were last made
• the date that person's leave to be in the UK expires
• the date the validity period of the document which evidences their right to be in the UK expires.

Landlords may already have their own procedures for verifying identity to prevent tenancy fraud, which they may wish to integrate with the repeat checks for the right to rent to save time and difficulty. However, the two should not be confused:

• exposed false identity or illegal subletting can result in termination of the tenancy but is not reportable to the Home Office
• if the tenant cannot provide evidence of their right to rent the landlord must notify the Home Office but that fact has no effect on their tenancy whatsoever.

What happens if someone 'fails' the document check

If a prospective tenant is unable to produce the necessary documentation, then you may want to refer them to get advice about how they can sort this out. If you refuse them a tenancy you do not need to take any further action.

Guidance on checking documents

For guidance on which documents are acceptable for each type of right to rent when conducting a physical document check, see here, or for the alternative to physical checks to confirm a person’s right to rent, see here.

Avoiding discrimination

Any procedures you introduce must implement document checks fairly and without discrimination. Staff should approach people consistently regardless of nationality, appearance, etc. and have a consistent approach to checking documents, including those you know to be British or you think 'obviously' are. The code of guidance on avoiding discrimination in right to rent checks emphasises this. If in doubt, check our guidance on discrimination in housing.

A quick checklist for housing associations

• Do you set (in whole or in part) your own waiting list rules independent of the local authority? If so you are responsible for carrying out right to rent checks for those lettings.
• Do you receive written confirmation of each letting made through the local authority to prove that a right to rent check is not required (or if this applies to all your lettings do you have a written agreement to evidence this)?
• Are you considering withdrawing from a common waiting list or 100 per cent nomination agreement? If so, you need to develop new procedures to cover the right to rent.
• Have you made sure that staff are aware of the consequences of failure to conduct right to rent checks and of the consequences of discriminatory processes or procedures?
• Do you have the appropriate skills and equipment for checking documents? If not, consider what training and resources you need or whether you contract out your obligations to an agent.
• If you are contracting out your right to rent checks to an agent:
  • Do you have a written agreement that refers to the Immigration Act 2014?
  • How do you ensure your agent carries out the checks with due diligence but strictly within right to rent criteria only (to avoid unlawful discrimination)?
  • Are you sure that your agent applies the right to rent rules only (and not any others such as or welfare benefit rules, which are different)? Or if they are conducting such checks, are they making sure that the tenant understands which rules are being applied?
  • If you use the local authority, have you paid particular attention to these points (as the LA should not be applying the usual rules it uses such as having access to public funds, etc.)?
• Have you made sure your own policy and procedures are strictly based on the right to rent only and not some other narrower criterion such as entitlement to welfare benefits or homelessness assistance? Ensure all members of staff receive appropriate training to avoid unlawful gate-keeping.
• What is your policy if an application is made by a person with a right to rent who is disqualified from housing benefit? (What if he/she is currently working?)
• Have you ensured you have an appropriate recording system in place? - that can:
  • identify an exempt letting (e.g. through the local authority waiting list)
  • identify if the occupier is a relevant national (and so has an automatic right to rent)
  • identify if the occupier has an indefinite right to rent
  • identify and flag occupiers with a time-limited or discretionary right to rent for a review
  • identify and flag young people in a household approaching the age of 18.
• Have you revised your procedures and advice and guidance to tenants about taking in lodgers (leaflets, standard letters, etc)? Provided the landlord has drawn tenants' attention to the legislation relating to lodgers and their need to make document checks, then any onus rests on the tenant. (Note that if you require tenants to get approval to take specific, named lodgers, you may well become responsible for the checks.)
• Have you made sure that staff advising tenants give clear accurate advice and give them access to and instructions on how to use the housing rights website?