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2.1 Acceptable Documents to Establish “Right to Rent”

3 Tenants without lawful immigration status after 30 June 2021

The Immigration Act 2014 imposed an obligation on landlords to carry out necessary checks to ensure they were renting to a person who has the Right to Rent in the UK and the consequence of non-compliance was a penalty notice of up to £3,000.

However, since 1 December 2016, it is also a criminal offence to rent to a person who does not have the Right to Rent, a landlord who does so could face imprisonment of a term not exceeding 5 years, a fine or both.

Terminating the Tenancy

Notice under section 8 of the Housing Act 1988

A mandatory ground for possession of the property has been inserted to schedule 2 of the Housing Act 1988 is ground 7B which a landlord can rely on where the landlord(s) has received notice from the Secretary of State notifying them that 1 or more of the occupiers in the property are unlawfully residing in the UK.

When seeking possession of the property on ground 7B 14 day’s notice must be given following which a possession order must be obtained

Notice to Quit

Where the Secretary of State has given notice to the landlord(s) identifying all occupiers (if there are more than one) in the property are disqualified from renting in the UK, the landlord may serve a Notice to Quit in the prescribed form giving no less than 28 day’s notice to vacate the let property.

In this case, the Notice to Quit would be treated as if it were a High Court order and can be enforced with the need for a possession order.

It is important to carry the necessary checks on prospective tenants before granting a tenancy agreement to ensure you are renting to persons who have the Right to Rent. You can find more about the Right to Rent on our website.

Right to Rent:-

Sections 20-31 and schedule 3 of the Immigration Act 2014 (“The Act”) came into force on 1 February 2016 and bring further statutory obligations for landlords and even agents to comply with. Landlords must now carry out the necessary checks to ensure they are renting to a person who has the right to rent, a person who has the right to rent is someone who is:

a) a British citizen,
b) a national of an EEA State other than the United Kingdom,
c) a national of Switzerland,
d) has been granting permission by the secretary of state to enter or remain in the UK, or
e) granted permission by the secretary of state to occupy premises in the UK for the purpose of Chapter 1 within the Act.

If the above does not comply with a contravention of section 22 (of The Act) will have been committed in which a penalty notice of an amount up to £3,000 may be served upon the landlord.

Where there is a superior landlord or agent in relation to the tenancy who agrees in writing to carry out the landlord’s statutory obligations, that agent will be responsible for failure to comply with The Act which would result in a penalty notice being served upon the agent.

Acceptable Documents to Establish “Right to Rent”

List A (Group 1): Documents named in this section permit the holder the permanent right to rent in the UK.

List A (Group 2): At least two documents named in this section must be seen, documents named in this section permit the holder permanent right to rent in the UK.

List B: Documents named in this section permits the holder to a time-limited right to rent in the UK.

List A (Group 1):

– UK passport EEA/Swiss national passport/identity card
– Registration Certificate or document certifying permanent residence of EEA/Swiss national
– EEA/Swiss family member Permanent Residence card
– Biometric Residence Permit with unlimited leave
– Passport or travel document endorsed with unlimited leave
– UK immigration status document endorsed with unlimited leave
– A certificate of naturalisation or registration as a British citizen

List A (Group 2):

– UK birth or adoption certificate
– Full or provisional UK driving license
– A letter from HM Prison Service
– A letter from a UK Government Department or Local Authority
– A letter from the National Offender Management Service
– Evidence of current or previous service in UK armed forces
– A letter from a police force confirming that certain documents have been reported stolen
– A letter from a private rented sector access scheme
– A letter of attestation from an employer
– A letter from the UK further or higher education institution
– A letter of attestation from a UK passport holder working in an acceptable profession
– Benefits paperwork
– Criminal Record Check

List B:

– A valid passport endorsed with a time-limited period
– Biometric immigration document with permission to stay for a time-limited period
– Non-EEA national residence card
– UK immigration status document with a time-limited endorsement from Home Office

Right to Rent Criminal Sanction

Legislation that came into force on 1 February 2016 requires landlords and even agents in certain circumstances to ensure carry out necessary checks to ensure they are renting to a person who has the “Right to Rent”.

The consequence of contravening this law was a civil penalty of up to £3,000. By virtue of new provisions which came into force on 2 December 2016 under the Immigration Act 2016, landlords and agents can be imprisoned for up to 5 years and or fined for contravening such laws.

The fine is no longer an amount up to £3,000 but is now an unlimited amount. It is now an implied term that a landlord may terminate a residential tenancy agreement where the premises is occupied by an adult who does not have the right to rent.

The notice is to be enforceable as it were an order of the High Court. It is imperative all landlords and agents are aware of how to determine if a person has the Right to Rent.

Certain agreements are excluded from this scheme such as tenancies involving local authorities, social housing, care homes, hospitals & hospices.

Points-Based Immigration System

EEA citizens who come to the UK to live, work or study will need to obtain immigration status under the points-based system in the same way as other foreign nationals.

The majority of EEA citizens will be provided with digital evidence of their immigration status, however, this will be dependent upon the immigration route used
and how they made their application. Some EEA citizens will have a Biometric Residence Permit (BRP). Those with a valid BRP can use this to access the online
right to rent service.

To prove their right to rent from 1 July 2021, individuals will provide you with a share code and their date of birth which will enable you to check their Home Office
immigration status via the online right to rent service available on GOV.UK:
https://www.gov.uk/view-right-to-rent
Those with a BRP may choose to present their BRP for a manual check.

You will obtain a statutory excuse against liability for a civil penalty if you carry out the check using the online service, or a manual check as set out in this guidance.

Tenants without lawful immigration status after 30 June 2021

There is no requirement for landlords to carry out a retrospective check on EEA citizens who entered into a tenancy agreement up to and including 30 June 2021, including where an EEA citizen provided you with their passport or national identity card to prove their right to rent.

You will have a continuous statutory excuse against
liability for a civil penalty if you carried out the initial right to rent check in the prescribed manner as set out in legislation and this guidance.

However, we recognise that landlords may wish to ensure that their tenants have lawful immigration status in the UK. There may be circumstances after 30 June 2021
in which you identify a tenant who is an EEA citizen who has not applied to the EUSS by the deadline and does not hold any other form of leave in the UK.

You may have chosen to carry out a retrospective check or have been made aware that your tenant does not have lawful status in the UK. They may tell you that they have
missed the deadline through no fault of their own.

In these circumstances, you do not need to end their tenancy agreement, but you must make a report via GOV.UK to the
Home Office in order to maintain your statutory excuse:

https://eforms.homeoffice.gov.uk/outreach/lcs-reporting.ofml

You should advise the individual they must make an application to the EUSS within

28 days in order to regularise their immigration status. They can do this free of charge at: https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status

Author: Hanish Patel

Date: 1st January 2024

British Landlords Association – The BLA