Right to Rent: Why You Should Check Before the Tenancy Agreement Is Signed

Since February 2016, landlords have a new job.  As well as being a landlord, you are also an immigration officer for the government!

The Immigration Act 2014 imposes on all landlords in England (including lodger landlords) the obligation to find out whether the proposed occupants have a ‘right to rent’ property in the UK.

The regulations do not apply – at the moment – in Wales, Scotland or Northern Ireland.  But they do apply in England.

What You Need to Do

You must check whether someone has a right to rent by checking documents. Find a list of acceptable right to rent documents at the end of this article.

The table lists all the kinds of document that can be produced by a tenant in a right to rent check. There is also a gov guide here.

You need to read that guidance and follow it every time you sign up tenants for a new property.  Its best to refer to the online guidance as the Home Office amend it from time to time and you need to be referring to the most up to date version.

Who You Need to Check

You need to check not only tenants but ALL occupiers in the property, apart from underage children.

So this includes:

  • Other family members, including
    • Adult children
    • Carers
    • Live in staff / help

So far as children are concerned, it’s best to get proof of age as teenagers’ appearances can be deceptive.

When You Need to Do the Check

You are supposed to do the check before the tenant moves into the property.  You need to see the original documents and have the occupier in front of you personally while you do the check.

You need to keep a record of the results of the check, copies of the documents you were shown, and details of any questions you ask and the answers you are given.

This record need to be kept very carefully.

If for some reason the tenancy agreement has to be signed in advance of the right to rent check being done, you need to include a clause making the agreement conditional upon a satisfactory right to rent check on all occupiers.

Then if you find out that the proposed tenant does not have a right to rent, the tenancy agreement will no longer be effective.

However it is important that you do the check before the keys are handed over – as doing it after then will be too late!  The tenancy will have started.

Things You Need to Watch Out for When Doing the Check

You are not expected to do a forensic examination of the documents to spot forgeries which are not obvious.  However you are expected to be alert to the possibility of illegality.  For example

You need to check that any photo on an ID document looks like the person in front of you

  • Be suspicious if documents are very crumpled as this may be an attempt to disguise a forgery and
  • Be suspicious if the tenants are taking on a property that appears to be too big for them – are they looking to take in unauthorised people e.g. as lodgers?  You need to ask that.  And keep a record of the answer they give.

What Can Happen if the Check Is Not Carried Out?

If you let tenants into occupation without doing the check, you are taking a risk.  If the Home Office later find that the tenants ARE illegal immigrants – you will be at risk of a penalty fine or (for cases the Home Office consider more serious) prosecution and a custodial sentence.

The penalty fines are £1,000 for a first offence and £3,000 for any subsequent offences.  Or if you are a lodger landlord, the amounts are £80 and £500.

However if you  have done the check and are able to provide proof of this, then even if the tenants are in this country illegally – you will be protected.  You have complied with the law and are safe from the penalties.

The checks need to be done before the tenants go into occupation because if they are done afterwards, there is nothing you can do if the tenants turn out to be illegal immigrants.   They will be your tenants and have a right to live in the property.

Make sure you get the checks done on time!  If you want a bit of help you can get my free checklist here.

List of Acceptable Right to Rent Documents

TYPE A1: Single Documents Showing an Unlimited Right to Rent

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 Certificate of naturalisation or registration as a British citizen

 

TYPE A2: Any Two of the Following Show an Unlimited Right to Rent

UK birth or adoption certificate Full/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 or current or previous service in UK armed forces
A letter from a police force confirming 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 a 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

 

TYPE B: Documents Showing a Time-Limited Right to Rent

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

 


Tessa Shepperson

Tessa Shepperson Landlord Law Blog Author

Tessa is a specialist landlord & tenant lawyer.  More of her writings can be found on the Landlord Law Blog.  She also runs the popular Landlord Law online service.

 

36 Replies to “Right to Rent: Why You Should Check Before the Tenancy Agreement Is Signed”

  1. Totally ludicrous situation whereby even though the tenants could be illegal they still have a right to live in the property. If they are found to be illegal then they should be deported straight away.

  2. What if the property was rented out through an agent as a managed service. Is the responsibility of checking the tenants papers with the agent or the landlord ?

    1. Hi Dan,

      If the agent has agreed to do this work and there is a specific, written agreement to this effect, then it will be the agent’s responsibility. Otherwise it is down to the landlord. Normally under agency law a landlord is bound by and is responsible for everything done on his behalf by his agent.

  3. I am a private tenant and the management company changed last September should I have had a new tenancy agreement ? I have lived in the same property for approx 14 years

  4. Seriously that is complete nonsense. And just proves how incompetent is the Home Office really.

    In the UK there are no compulsory ID cards, so what exactly the landlord will check if I tell him/her that I do not have an ID card?

  5. instead of this shit the UK should introduce proper rent laws like they are in place in any other civilized country.

    1. Europe
      Germany : Owner ( landlord is a word coming from other century and other undeveloped society , Not a modern one!) so…owner do not charge any fees, it is against law, here even owner charge fees not only agencies. Owner withdraw a contract comprising the mentenance service and cleaning service in communal parts AsA Rule not as option
      Owner can not rent a house in the miserable conditions as in London flats and houses. If happens what happens to me in a London Studio few years ago, to feel electric power in the tap water that owner is going to jail in Europe. And soon on… Yes, I totally agreed with your comment

  6. What if the landlord refueses to sign a tenancy agreement with me and do a credit check on me if i have the right to rent

  7. Has any of you rented a property through an agency lately???? Agents are obliged by law to use specialised companies that do all the checks. Personal documents, employment, references, bank statements ,previous tenure, its all handled by them. It’s only landlords turning a blind eye and corrupt agencies that can ever rent properties to people without valid documents and thats probably down to profit, scumbags, profiteering instead of being law abiding.

  8. Am I right in thinking that if you have a tenant in the property before February 2016 and they opt to renew their assured shorthold tenancy agreement, that you do not need to conduct these checks?

    1. When checking anything with ‘right to rent’ you need to look at the Home Office guidance online as it changes from time to time. Current guidance can be found here https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice/code-of-practice-on-illegal-immigrants-and-private-rented-accommodation-for-tenancies-starting-on-or-after-1-february-2016

      At the time of writing this, section 3.2 says:

      “The scheme applies only to residential tenancy agreements first entered into on or after the date on which the scheme is implemented in the area where the property is located.

      A landlord is not required to take any action in relation to residential tenancy agreements entered into before that date, or which are renewed after that date if the renewed agreement will be between the same parties and there has been no break in the tenant’s right to occupy the premises.”

      In most areas, the scheme came into force on 1 February 2016. However, if you were part of the pilot scheme them the date will be earlier.

  9. What happens if the persons the Landlord has let property to are legally allowed to live there, but they go on to let an illegal immigrant live at the property with them without the Landlord knowing. Would the Landlord then be liable for the tenant’s actions, even though he knew nothing about it/the matter was concealed from him?

    1. If you have done proper checks (and are able to prove this) on all occupiers before the tenants moved in and if their tenancy agreement forbids them to allow anyone else to live there – you should be protected from the penalties.

      This is why it is so important that you do the checks and have a properly drafted tenancy agreement. In right to rent it is all about protecting your back!

  10. The letting agent is asking me to pay for both inventory checks, check-in and check-out, as part of the lease agreement. In fact taking the checkout as well in advance. Are there any rules around this. Seems unfair to charge me for both.

  11. Tessa could u advice the many thousands of people including myself that have their application appending at the homeoffice for 10, 15, 20, yrs and they don’t have any form of ID or status and awaiting for homeoffice to make a decision on their application, where should they live in the mean time or are you suggesting that we sleep on the street for the time been, if they are telling landlord not rent to us I personally find this ridiculous they don’t want people to work and pay tax and now they want us to live on the streets after they are the one that keeps our application for that ridiculous period of time smh this is all a bag of nonsense I awaits your reply thk

  12. I have just set up angreement with a british born Asian. Surely this is unnecessary for British Citzens. I only thought it was required for non British.

    1. Hi Dave,

      The Government is clear that landlords must check the right to rent of all tenants, and certainly not only ones they think are British. In fact, on their ‘Who You Have to Check’ page, they explicitly say:

      “Check all new tenants. It’s against the law to only check people you think aren’t British citizens.”

  13. Who has to pay for the right to rent check
    The landlord or the tenant? I was told by my landlord to pay £50 for him to conduct this check.

    1. Hi Dardan, you shouldn’t have to pay anyone money for this. It’s a legal duty of the landlord to make sure a right to rent check is performed. If you didn’t pay and they refused to do the check, then the landlord would have broken the law and could be made to pay the £1,000 fine.

  14. My brother has been renting from a private landlord 2 bedromm flat thought the agency and he has been asked to pay £50 cash each for himself and his wife. The fee is for the agency to conduct ‘the right to rent check ‘

    I wonder whether the agency need to conduct the check at all as this only apply to tenants who are renting after 1st Feb. 2016 and not someone who has been at the property for the last 7 years . He should be treated like an old tenant as the T&C of the contract have not changed. He has signed his contract in June for another year until May 2018.

    His argument is why should he pay the £50 fee (each for him and his wife) because its up to the landlord/agency to prove their due diligence and not the tenant.
    He does agree with the right to rent check ‘even though it’s not needed’ as he is on the continuous contract for the last 7 years. But he is disputing the £100 fee and fee as this is sort of rip off / harassment from the agency /landlord.
    Furthermore he has spoken to other local estate agents in his area and they don’t charge any fee to carry out this check as well as Shelter housing charity and citizen advice and they have all come to the same conclusion taking into consideration his circumstances.

    I would like to know what do you think should happen.

    Regards

    Dardan Azemi

    1. Hi Dardan, a few points here.

      Firstly, it’s the landlord’s legal responsibility to make sure their tenant has the right to rent, though they can instruct an agent to perform the check for them.

      Secondly, if your brother is renewing a contract from before the start of the right to rent rules in their area, then, as Tessa commented below, they don’t have to be checked. In other words, your brother is right that he doesn’t need to do the check. Although, a landlord/agent may feel more comfortable that they will not get into legal trouble if they do a check anyway, just to be sure.

      Thirdly, the right to rent check has to happen before the tenant has signed. If your brother has already signed the contract and the landlord/agent hasn’t checked, then they have missed the boat anyway.

      Finally, as I replied to your last question, it is the landlord’s legal duty to check the tenant’s right to rent (for new tenancies, at least). Therefore, if a tenant simply declined to pay a fee for the check, then the landlord would be in no position to take any reasonable action.

      I hope this clears things up for you, Dardan!

      Thanks,

      Sam

  15. That’s why hard working people are poor in the UK cause the government focuses on wrong systems, go to high Wycombe Bradford Leicester to see how wrong the system is,

  16. I need help am a student and my landlord take my 900 pounds without no reason because am new in the country pls can someone help me is alot of money to me as a student I need my money back Am from Africa studying here in Bristol united kingdom

    1. Hi Ahamefula,

      Was this £900 a holding deposit or a tenancy deposit? (You can find out the difference here)

      If you fail a right to rent check after leading the landlord/agent to believe that you do have the right to rent in the UK, then they are allowed to keep your holding deposit.

      If you need help getting a tenancy deposit back, then Shelter can help you. Just click here.

  17. Please I need your advice.. I’m ab asylum seekers.. Now I have a fresh claim on 30 of November.. I’m not taking any benifet or accomidation and pay all my expenses.. my passport is with home office do I have the right to rent?

    1. Hi Rebab. Look at the table at the bottom of this article. It tells you what documents prove your right to rent. If you do not have a valid document or combination or documents, then you won’t be able to prove your right to rent to a landlord.

  18. Hi, I am a full time PhD student(non EEU)about to finish, my visa expires on July 2019 but me and my boyfriend (German) would like to move to a single flat(as by now we share), but the agencies ask us to sign a contract for a year but when I let them know that my visa will finish before the year then they say we are not suitable to rent with then even if my boyfriend fulfil all the requirements and we ask them to establish that I am a permitted occupant just until July (so I figure out if I get a job or we get an engaged visa) but they say no? Which are our options? We don’t want to break the laws and we don’t find more alternatives…..

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