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About ‘Right to Rent’ Checks
7 – 12 minutes to read
In this guide
Do you rent property in Wales?
If so, note that the Right to Rent legislation does not apply in Wales.
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Before you start:
Before reading this guide you may first want to read our general article on discrimination, linked below:
1. Introduction
When you apply to rent a property you will at some stage be asked to provide your passport or other documentation to prove your immigration status and whether or not you have a ‘right to rent’ a property in the United Kingdom.
Many people feel annoyed about this and ask why they need to do this and why their prospective landlord should have sight of these documents and retain copies of them.
However, the landlords have little choice in this. They are required by law to check the immigration status of all prospective tenants (and licensees) and must only rent property to applicants who are able to prove that they have a legal right to rent in the UK.
The landlords or agents are then obliged to keep copies of the documentation produced by tenants and keep it for the duration of the tenancy and for two years afterwards.
If they fail to do this they can be fined by the Home Office (with fines starting at £10,000) or, if the Home Office consider the case a serious one, they can be prosecuted and if found guilty sent to jail.
So, not surprisingly landlords and agents are anxious to follow the law and not put themselves in a position where this can happen to them.
However the scheme is very unpopular among landlords who resent being used as ‘unpaid border guards’ by the government.
2. Who must be checked?
Landlords and agents must carry out a right to rent check on EVERYONE who is going to live in the property. So this will mean:
- All the named tenants
- Any other family members, including all children living at the property who are age 18 or more
- Any other occupiers such as live-in carers or nannies, lodgers and the like
So far as children are concerned, landlords and agents will often ask for birth certificates for children, particularly teenage children, as it can be difficult to tell their age from their appearance.
Be aware that they are entitled to ask for this information and in view of the penalties that they can suffer if they allow an 18-year-old to live in their property who does not have a right to rent, it is entirely reasonable and legal for them to do this.
Landlords will also almost certainly impose restrictions on allowing you to permit anyone else to live at the property without having first been ‘right to rent checked’ and in most cases you will be in breach of the terms of your tenancy agreement if you do this.
If you have a limited right to rent – your landlord must carry out a further check once your time has run out. If it transpires that you have lost your right to rent, your landlord must report this to the Home Office.
3. Is the Right to Rent scheme discriminatory?
The big fear of ethnic minority applicants is that the ‘right to rent’ check regulations and the stringent penalties imposed on landlords who breach them, will prejudice landlords in favour of applicants who are obviously British or white and who are able to produce a British passport.
As landlords obviously do not want to be fined up to £10,000 (for a first offence) or go to prison, there is a great temptation for them to rent only to obviously British applicants.
In law, landlords and their agents are not supposed to discriminate against applicants because of their race or ethnicity (or indeed because of any of the other ‘protected characteristics’ such as age, sex or disability).
In practice, though it is often difficult to know whether someone is discriminating – and in most cases impossible to be able to prove this (for example, in a claim for compensation for discrimination) unless the landlord or agents confirm it in writing. Which is unlikely.
There is a Code of Practice for landlords on avoiding discrimination here.
4. The Judicial Review litigation
Many people take the view that the ‘right to rent’ scheme is inherently discriminatory and therefore unlawful.
The Joint Council for the Welfare of Immigrants (JCWI) were so concerned about this that in 2018 they issued ‘Judicial Review’ proceedings, which were supported by Liberty, the Equalities and Human Rights Commission and the Residential Landlords Association (now the National Residential Landlords Association).
The case was successful in the High Court. It was then appealed to the Court of Appeal, which in 2020 overturned the decision, finding that although the scheme is discriminatory, this was something the government were entitled to do as it was a policy decision.
If you want to learn more about the scheme and the legal challenge, you may want to watch the video below which is an interview with barrister Justin Bates who acted for the Residential Landlords Association in the case.
Justin discusses the right to rent regulations in some detail, explaining how they work, before explaining the legal challenge and the decisions made by the High Court and the Court of Appeal.
The case did not proceed to the Supreme Court as permission to appeal was refused. Much to the annoyance of landlords and their tenants!
5. Where occupiers do not have the right to rent
If the Home Office become aware that you or anyone in your household does not have a right to rent, they will require your landlord to take steps to evict you.
The first you will know about this is the receipt of a Notice of Action and End of Tenancy, which your landlord will serve on you, giving you 28 days to vacate. This should have attached to it a copy of the Notice sent to the landlord by the Secretary of State notifying them that the occupiers of their property are disqualified.
If you have not vacated by the end of the 28-day period, your landlord can then enforce this through the High Court Enforcement Officers as if it were a Court Order for Possession.
If some tenants do still have a right to rent, and it is only some of the occupiers who do not, the Immigration Act 2016 introduced a new mandatory ground for possession that your landlord can use.
In point of fact, enforcement under these rules is very rare, so if this happens to you, the best thing is to take legal advice. For example, from one of the services set out in our Further Advice Services article.
6. To summarise
Landlords are obliged, in respect of ALL occupiers of their rented property:
- to request identity documents,
- to insist on viewing the original documents, and
- to keep copies for the duration of the tenancy
- and for two years afterwards.
They must carry out this check within 28 days of the start of the tenancy. They will be breaking the law if they do not do this, and if they allow you into occupation without having been checked first.
However, landlords are also bound by the anti-discrimination legislation and must not discriminate against applicants because (for example) of their race and ethnicity.
In practice, though, unless the landlord or letting agent actually confirms in writing that they are refusing to accept a tenant on racial or ethnic grounds, a claim for compensation for breach of the discrimination rules is unlikely to succeed, as it would be so difficult to prove.
If the Home Office learn that an occupier in a rented property does not have a right to rent, they can order the landlord to have them removed, if necessary, through the Courts.
The Court of Appeal have confirmed, in a Judicial Review challenge, that although the legislation is inherently discriminatory, it is nevertheless still legal. Appeal to the Supreme Court has been refused.
This is the end of this article.
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