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Right to Rent Checks

The Immigration Act 2014 made it mandatory for landlords or their agents to carry out Right to Rent document checks on all tenants and or occupiers past ( i.e. all new tenancies which commenced on or after 1 February 2016) and present. Essentially these checks were expected to ensure that only those with a legal right to be in England can rent or occupy a property. A failure to carry out these checks may lead to an unlimited fine and or a custodial sentence of up to 5 years.

Permitted documents

  1. List A, Group 1 – a single document in this list proves that a tenant/occupier has a permanent right to rent in England;
  2. List A, Group 2 – 2 documents from this list show that a tenant/occupier has an unlimited right to rent in England; or
  3. One document from list B shows that a tenant/occupier has a time limited right to rent in England.

List A, Group 1
Documents in Group 1 include, but are not limited to, a British passport, a passport or national identity card of another country in the EEA (the EU plus Norway, Iceland, and Lichtenstein) or Switzerland, a registration certificate or document showing permanent residence of a EEA citizen or a Home Office issued ‘Permanent’ residence or ‘indefinite leave to remain card’.

Group 2
Document combinations in Group 2 include, but are not limited to, a birth or adoption certificate, a full or provisional picture UK driving license, benefits paperwork, or an HM armed forces identity card.

List B
Documents in List B include a current passport with an endorsement showing a time limited period to remain in the UK (i.e. a visa) or a Home Office issued residence card.

Records
All documents should be checked in their original form only and with the tenant or occupier present or via a live video link. Right to Rent checks cannot be carried out via live video links with the tenant or occupier holding the original documents, the landlord or agent must be in possession of the original documents. Copies of the documents should then be taken of all the relevant pages (if in doubt copy every page) and a record made of the date the checks were carried out. The copies must be kept for a year after the end of the tenancy.

Time Limited tenants or occupiers
Where the tenant or occupier has a time limited period to remain in the UK, landlords or agents should make a note of the time limit date because further checks will need to be conducted prior to this date to ensure that the tenant or occupier has a continued right to rent. If the landlord or agent discover that the tenant or occupier no longer has a right to rent then they are under a statutory obligation to report the tenant or occupier to the Home Office.

Other issues

  • Where tenants or occupiers wish to arrange their tenancies prior to arriving in the UK, landlords or their agents may agree to a tenancy in principle but should not enter into any tenancy until they have seen the original documents.
  • Certified copies of documents cannot be accepted. A working or retired solicitor, accountant, MP, dentist (along with a range of other professionals) with a UK Passport can provide a letter of reference (specific information must be provided) within the 3 months prior to the check for the purposes of Group 2.
  • All tenants and occupiers must be individually checked, it is not acceptable to check just the first tenant or occupier or to leave people off the tenancy agreement in order to avoid these checks.
  • Reference agencies can be hired to carry out these checks (although an agent cannot pass off their liability to a third party) but the Home Office has suggested that they will not penalise anyone who has been caught out by a good forgery.
  • If the Home Office has the tenant’s or occupier’s documentation (usually for an asylum application) then a landlord or agent may use the ‘Landlords Checking Service’ to verify their right to rent in England. A response by the Home Office must be provided within 2 working days otherwise the tenant is automatically approved.

Comment
The document checks are a necessity that landlords and agents need to familiarise themselves with. Many will already be familiar with taking copies of passports and proof of address letters so this should not cause a substantial change in procedure. However, the Right to Rent checks have very specific requirements as to the types of documents that are acceptable, their validity periods, and the manner in which they must be checked. Failing to fulfil the requirements could lead to prosecution.

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