Immigration Act and Right to Rent

All landlords and agents need to check the identity of all prospective occupiers. Copies of the documents obtained will need to be securely stored. Landlords and agents must not authorise an adult to occupy a property where the adult is not a national of the UK and Colonies or Republic of Ireland, AND who does not have the right to enter or remain in the UK unless the prescribed requirements have been complied with.

Brexit

Right to rent checks continue in the same way until 30 June 2021 for citizens of the EU, Switzerland, Norway, Iceland and Liechtenstein. See the .gov website page.

From 1 July 2021, the list of acceptable documents has been updated. If the person is not a national of the UK and Colonies or Republic of Ireland, the document will have to show either indefinite leave to remain in the UK or time-limited to remain.

There's no requirement for a retrospective check on EEA citizens who entered into a tenancy agreement up to and including 30 June 2021. You would maintain a continuous statutory excuse against any civil penalty if you undertook the initial checks in line with the guidance that applied at the time.

Identify the Occupiers

Landlords and agents need to make reasonable inquiries about the occupiers of the property, even those not named on the tenancy agreement. For example, if a studio flat is being let to a single person, no further enquiries are likely needed. Still, if the same single person wants to take a four-bedroom house, questions would need to be made as to why a single person is taking the property alone. The duty to check identity applies to ALL occupiers, including lodgers, not just tenants. A landlord must not authorise ANY adult to occupy (not just tenants) if they have no entitlement to remain in the UK.

A suitable and well-written application for accommodation form should be used, asking all the necessary questions and obtaining necessary disclaimers from the prospective occupier regarding the answers.

Establish Whether the Property Will Be Occupied as the Only or Main Home

Only the right to rent status of persons occupying their only or main home requires checking. Again, a good application form will ask the necessary questions. Guarantors do not need the right to rent checks if they do not occupy the property.

When an occupier lives away from home for extended periods due to employment, the address to which they return when they are not working is usually taken as being their only or primary residence.

A landlord who considers that the occupier will not be using the premises as their only or main home is advised to record the address they do occupy as their main home and the reasons for not occupying the premises as their only or main home.

Where a landlord doubts a person's intended use of the property, they should assume that the person intends to use it as their only or main home.

Document Checking

Home Office Online Service - Share code

The Home Office online service works based on the person first viewing their own Home Office right to rent record. They may share this information by providing you with a 'share code'. When this code is entered along with the person's date of birth, it enables you to access their right-to-rent profile page.

In the person's presence (in person or via live video link), you must check that the photograph from their profile page is of them (i.e. the information provided relates to the person, and they are not an imposter).

The online service will confirm that no further check is required for someone with a continuous right to rent. The service will advise when an additional check is needed for someone with a time-limited right to rent.

You must retain evidence of the online check; this should be the profile page confirming the person's right to rent (as shown in the pictures above). You can print the profile page or save it as a PDF or HTML file.

Whilst you may encourage the online check, you cannot insist that they use it or discriminate against those who wish to prove their right to rent by documents from the acceptable document list.

You can find more information about using the Home Office online service in guidance here.

Checking documents without the share code

Once all adults who will occupy the property as their only or principal home have been established, landlords and agents will need to see original identification documents that will need to be checked against the document holder" in person or via live video link".

You must take reasonable steps to ensure the ID matches the holder. For example, the picture (if there is one) must represent the person, and the age must reasonably match their appearance. However, landlords or agents are not expected to have the same expertise as an immigration officer.

The documents that you must obtain are only summarised below. You should consult the statutory guidance accompanying the right-to-rent legislation for other acceptable documents and further information.

Some documents are sufficient where only one has been provided (for example, a passport). Otherwise, a combination of two is required.

The list of documents below is not exhaustive, and you should always consult the latest code of conduct.

List a - Acceptable Documents Establishing a Permanent Right to Rent (from 1 July 2021)

Group 1 - Acceptable Single Documents

A passport (current or expired) showing that the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.

A passport or passport card (current or expired) showing that the holder is a national of the Republic of Ireland.

A current document issued by the Home Office to a family member of a citizen of an EEA or Swiss citizen and indicates that the holder is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK.

A current permanent residence card issued by the Home Office to the family member of an EEA or Swiss citizen.

A biometric immigration document (current or expired) issued by the Home Office to the holder which indicates that the person named in it is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK.

Group 2 - Acceptable Document Combinations

Any two of the following documents, when produced in any combination:

A birth certificate issued in the UK, Channel Islands, the Isle of Man or Ireland

An adoption certificate issued in the UK, Channel Islands, the Isle of Man or Ireland

A letter issued by a person who employs the holder no longer than three months before the date on which it is presented, which indicates the holder's name and confirms their status as an employee and employee reference number or National Insurance number and states the employer's name and business address.

A letter issued by a police force in the UK no longer than three months before the date on which it is presented confirming that the holder has been the victim of a crime in which a document listed in List A (Group 1) belonging to the holder has been stolen and stating the crime reference number.

An identity card or document issued by one of Her Majesty's forces or the Secretary of State confirming that the holder is or has been a serving member in any of Her Majesty's forces.

A letter that is issued by a government department or local authority no longer than three months before the date on which it is presented; is signed by a named official stating their name and professional address; confirms the holder's name; and confirms that the holder has accessed services from that department or authority or is otherwise known to that department or authority.

A current licence to drive a motor vehicle granted under Part 3 of the Road Traffic Act 1988 (to include the photocard licence in respect of licences issued on or after 1 July 1998) or Part 2 of the Road Traffic (Northern Ireland) Order 1981 (to include the photocard licence).

List B - Acceptable Documents With a Time Limited Right to Rent

All documents in this list must be valid (not expired) at the time of the right-to-rent check.

Acceptable documents from list B include (see code of practice for complete list):

A current passport or travel document endorsed to show that the holder is allowed to stay in the UK for a 'time-limited period'.

A current biometric immigration document issued by the Home Office to the holder which indicates that the person named is permitted to stay in the UK for a time-limited period (this includes a Biometric Residence Permit).

A current document issued by the Home Office to a family member of a citizen of an EEA state or Switzerland which indicates that the holder is permitted to stay in the UK for a time-limited period.

A current residence card or a derivative residence card issued by the Home Office to a non-EEA citizen who is either a family member of an EEA or Swiss citizen or has a derivative right of residence, which indicates that the holder is permitted to stay in the UK for a time-limited period.

A current immigration status document issued by the Home Office to the holder, with a valid endorsement indicating that the holder has been granted limited leave to enter or remain in the UK.

Biometric and Frontier Worker Permits

How Biometric Residence Card (BRC), Biometric Residence Permit (BRP), and Frontier Worker Permit (FWP) holders evidence their right to rent is changing. From 6 April 2022, BRC, BRP, and FWP holders will evidence their right to rent using the Home Office online service only. Presentation of a physical document will no longer be acceptable.

From 6 April 2022, landlords will no longer be able to accept or check a physical BRC, BRP or FWP as valid proof of right to rent, even if it shows a later expiry date.

Landlords do not need to retrospectively check the status of BRC, BRP or FWP holders who entered into a tenancy agreement until 5 April 2022. Landlords will maintain a statutory excuse against any civil penalty if you undertook the initial checks in line with the guidance when you made the check.

Copying and Storing ID

Once obtained and checked in person (or via live video link), you must copy the document(s) and the date of copying recorded. The copy can be stored in hard copy or electronically. If electronically, it can be stored in any format you cannot later modify, and jpeg (which most camera phones hold images in) or PDF will be acceptable.

The documents must be stored securely and kept for at least 12 months after the tenancy has ended. You should destroy the records because you must only retain personal data as long as necessary. When considering apps for storing documents, be prepared to keep the documents for a long time, as tenancies can continue indefinitely.

Landlord Checking Service

If a prospective occupier informs you during enquiries that they have some outstanding application, appeal or other ongoing cases with the Home Office, a landlord or agent may contact the Landlord Checking Service - where you can obtain a positive right to rent notice.

If the Landlord Checking Service fails to respond to a request within two working days, the landlord or agent may proceed as though the Landlord Checking Service had issued a Positive Right to Rent Notice.

Letting Agents

The default position is that all landlords are liable for the checks even if they employ an agent to let the property.

An agent is responsible for a landlord's contravention if (and only if) the agent acts in the course of a business, and under arrangements made with the landlord in writing, the agent was obliged to comply with the prescribed requirements on behalf of the landlord.

Equality Act

To comply with the law on Right to Rent checks and avoid a breach of the Equality Act, you must check all prospective occupiers, and this ensures you have a fair system that does not discriminate in any way.

Follow-up checks

Where the occupier has a time-limited right to rent, the landlord will have been presented with a document from list B during the initial checks. At the time of the initial checks, you should record the date for their leave to remain in the UK and when their passport or other travel document expires (where the adult is a non-UK, EEA or Swiss citizen).

The landlord must carry out further checks before the greatest of the following:

• 12 months
• expiry of the person's permission to be in the UK
• expiry of the validity of their document, which evidences their right to be in the UK

You must conduct the further check towards the end of the longest period described above, within 28 days before the expiry of that period.

A renewal tenancy does not trigger a requirement to conduct the right-to-rent checks again; it is the timeframes described above.

Filing a Report with the Home Office

If subsequent assessments reveal that a tenant no longer possesses a valid right to rent or the existing occupier(s) do not adhere to the rules, it becomes the landlord's responsibility to file a report with the Home Office. The landlord is obliged to complete this report using the online form available here https://eforms.homeoffice.gov.uk/outreach/lcs-reporting.ofml as soon as they reasonably discover that the tenant's right to rent has expired or they are dealing with non-compliance issues. This needs to be done before their existing time-limited statutory excuse expires.

While filing a report, landlords should refrain from submitting copies of any physical or digital documents. However, these documents should be retained as detailed in the initial right-to-rent checks to fulfil any future right-to-rent inquiries.

Submitting a report in the specified manner will generate a unique reference number. Landlords must maintain a copy of this number as proof of their ongoing statutory excuse.

Filing a report with the Home Office helps maintain a statutory excuse when the eligibility period for a tenant has expired. It is essential to understand that a statutory excuse can only be initially established through checks conducted before the start of a tenancy agreement.

If a landlord has failed to carry out the required checks before the commencement of a tenancy, they cannot establish a statutory excuse by filing a report with the Home Office later.

Penalty

From 13 February 2024, the civil penalty is raised to £5,000 per lodger and £10,000 per occupier for a first breach, with repeat breaches set at £10,000 per lodger and £20,000 per occupier.

In addition, it is a criminal offence for a landlord if:

• the premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement and
• the landlord knows or has reasonable cause to believe that the premises are occupied by an adult disqualified due to their immigration status.

It will be a defence for any person charged with the above offence where:

• the person has taken reasonable steps to terminate the tenancy and
• the person had taken such steps within a reasonable period, beginning with when the person first knew or had reasonable cause to believe that the adult occupiers occupied the premises.

Eviction

Where ALL occupiers have no right to rent, the Secretary of State may notify the landlord identifying all occupiers. The landlord may serve the occupiers a notice on a prescribed form. The notice must give the occupiers at least 28 days' notice that their tenancy will end. The notice is then enforceable as if it were an order of the High Court. Amendments have been made to the Protection from Eviction Act 1977, and where a notice has been given to the landlord as outlined, the tenancy is excluded.

Where some occupiers have no right to rent, a new ground 7B has been inserted into the Housing Act 1988, which allows a landlord to serve a section 8 notice (where the tenancy is assured or assured shorthold). The ground may only be used after the Secretary of State has served the landlord a notice notifying them that some occupiers do not have a right to rent. If ground 7B is satisfied (by the production of the notice from the Secretary of State) and no other ground apples (such as rent arrears), the court may order possession or order that the tenancy now vests only in those occupiers who do have a right to rent.

A similar provision applies to a protected or statutory tenancy under the Rent Act 1977. For any tenancy that is neither assured, assured shorthold, nor under Rent Act 1977, an implied term is inserted into the tenancy by that:

The landlord may terminate the tenancy if the premises to which it relates are occupied by an adult who is disqualified due to their immigration status from occupying premises under a residential tenancy agreement. The term is implied in all tenancies (not assured shorthold, etc.) whether they were entered before or after 1 December 2016.

The Immigration (Hotel Records) Order 1972

The Immigration (Hotel Records) Order 1972 (IHRO) is a little-known piece of legislation that commenced in 1973. Its title is misleading by referring to "hotel records" because the order applies to all residential lettings where a person will: "lodge or sleep, for one night or more, in accommodation provided for reward".

The "keeper" includes a landlord and letting agent and is defined as "in relation to any premises, includes any person who for reward receives any other person to stay in the premises, whether on his own behalf or as manager or otherwise on behalf of any other person".

Collection of information

The landlord/agent must collect the following information from all persons 16 years or older who stay at the premises on arrival:

• full name
• nationality

In addition, all persons aged 16 years or older who are regarded by the order as an "alien" (someone who is not a Commonwealth citizen, nor a British protected person, nor a citizen of the Republic of Ireland) must also supply the following:

on arrival: proof of identity and nationality by way of a passport, certificate of registration or other document establishing his identity and on or before departure: his next destination and, if it is known to him, his complete address there

Under right-to-rent rules applicable to England, similar checks are required for "adults" only (18 years or older). The IHRO applies to all persons aged 16 years or older and applies to England and Wales.

Where the person is defined as an "alien", it's a requirement to obtain the next destination and, if known, full address on or before departure. Currently, for the tenancy deposit prescribed information, an address is required to be used at the end of the tenancy. However, that address is simply an address for contacting at the end and won't necessarily be their next destination. To comply with the obligation, the landlord/agent must ask for a forwarding address around the departure date.

Records to be maintained

The keeper must record in writing the date of arrival for all persons aged 16 or older (tenancy agreement will have commencement date) and keep that record along with the information collected above for at least 12 months.

The records must be open to inspection by any constable or any person authorised by the Secretary of State.