New Right to Rent Code of Practice comes into force 22nd January 2024
Since February 2016, Landlords in England have been required to check that anyone renting residential property’s the correct legal immigration status. This means that landlords and their letting agents (where applicable) must check documents manually or use the Landlord Checking Service through the Home Office to ensure that tenants have the Right to Rent..
On the 22 January 2024, the revised code of practice will be introduced, replacing the previous version and the changes implemented will coincide with higher maximum fines for non-compliance.
These higher fines represent what the Home Office has described as one of the “biggest shake ups” of civil penalties since the checks were first introduced.
Landlords are responsible for carrying out Right to Rent checks to ensure that all occupants of residential properties aged 18 and over have the Right to Rent in England. The penalties for non-compliance will increase from £80 per lodger and £1,000 per occupier for an initial breach to up to £5,000 and £10,000 respectively. Any repeat breaches will attract fines as high as £10,000 and £20,000.
Who should use this code of practice?
This is a statutory code. This means it has been approved by the Secretary of State and laid before the UK Parliament. Courts determining appeals against the imposition of a civil penalty on or after 22 January 2024 are required to have regard to this code.
A statutory excuse under section 24 of the 2014 Act allows landlords (section 26 for agents) to be excused from paying a penalty for letting their property to someone disqualified from renting. Landlords and letting agents can establish a statutory excuse against liability for a civil penalty by conducting Right to rent checks before allowing adults to occupy rented accommodation. Landlords should not let property for use by an adult who cannot satisfy a Right to Rent check. Some checks will allow for an unlimited right to rent, while others will allow for a time-limited right to rent.
The new code explains the actions a landlord can take to avoid liability for a civil penalty if they breach section 22 of the 2014 Act, which prohibits a landlord from renting to a person who does not have the right to rent. This is called establishing a statutory excuse against liability for a civil penalty.
A statutory excuse may be continuous or time-limited in relation to a particular occupier.
Liability for Penaties
Responsibility under the Scheme lies with the landlord; that is the person who authorises the occupation of accommodation by the occupier under an agreement providing for the payment of rent. There are some circumstances in which responsibility for compliance with the Scheme can be transferred to another person. These are described below in Transfer of liability.
Transfer of liability – Sub letting
If an occupier subsequently sub-lets and authorises occupation by other adults under another residential tenancy agreement, then they will be responsible for occupation by the subtenants and sub-occupiers. Any occupier who sub-lets all or part of their accommodation to a person for payment of rent will be a landlord for the purposes of the Scheme. They may be liable for a civil penalty if they do not undertake the prescribed checks and allow occupation by a person who needs and does not have a right to rent. This applies equally to occupiers sub-letting private or social housing.
However, where an occupier sub-lets and so becomes a landlord, they can ask their landlord (the ‘superior landlord’) to agree to accept responsibility for occupation by the sub-tenants and any contraventions of the Scheme. The superior landlord will then be responsible for conducting right to rent checks and will incur any liability for a penalty. This should be an agreement in writing.
Where the superior landlord has agreed to be responsible, they are treated as though they have authorised the occupation by the sub-tenants themselves and are the responsible landlord for the purposes of the Scheme. To protect themselves from liability for a penalty, they will need to take the same steps that they would if they were granting the residential tenancy agreement themselves. These steps are ascertaining who will be authorised to occupy the property as their only or main home under the sub-tenancy, checking the status of those persons, making any follow-up checks and reports where necessary, or instructing an agent to comply with these requirements for them.
Unless the superior landlord confirms that they are willing to accept this responsibility in writing, then the occupier who is sub-letting will be the responsible landlord for the purposes of the Scheme.
Letting Agents
Landlords may appoint an agent to conduct checks on their behalf but should keep a written agreement which should also make clear if the agent is to be responsible for the initial right to rent check and any follow-up checks for those with a time-limited right to rent. Landlords are advised to agree the timescales the agent should follow when making the checks and the form that the agent should use to communicate these (written or verbal). Under this arrangement, the liability for civil penalties transfers to the agent, but liability cannot be transferred beyond the agent.
Sitting occupiers and changes in landlord
If a landlord acquires a property with sitting occupiers, the new landlord should confirm with the transferring landlord that right to rent checks have been undertaken and retain evidence, for example copies of the documents (physical or digital) checked by the previous landlords, to demonstrate this. Careful note should be taken of whether and when further follow-up checks must be undertaken to ensure a statutory excuse against a penalty is maintained.
If the tenancy was entered in to before the Right to Rent Scheme came into force, landlords do not need to confirm with the transferring landlord that a right to rent check has been carried out. However, landlords should ask for proof of the date of the tenancy was entered in to and keep a record of this.
The Scheme specifies who may be liable for a civil penalty in circumstances where a disqualified person with no right to rent is found to be in occupation and the landlord has changed since the time the original residential tenancy agreement was granted. If the occupier should never have been allowed to occupy the property under a residential tenancy agreement as they had no right to rent at the time the agreement was granted, then the original landlord who granted the residential tenancy agreement will be liable for a civil penalty, even if they have since sold the property on to a new landlord.
If an occupier had a right to rent at the time the residential tenancy agreement was granted, but they have subsequently lost that right to rent and the necessary follow-up checks were not conducted, then the landlord at the time the breach is identified will be responsible. This would occur where the occupier’s permission to stay in the UK has expired and the landlord’s statutory excuse in relation to that occupier has also expired.
Establishing a Statutory Excuse
In order to establish a statutory excuse against a civil penalty in the event the landlord is found to be renting to someone without lawful status, landlords must do one of the following before commencing a tenancy:-
1. A manual right to rent check (all citizens);
2. A right to rent check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) (British and Irish citizens only);
3. A Home Office online right to rent check (non-British and non-Irish Citizens).
Increasingly, the Home Office is issuing eVisas rather than issuing physical documents as proof of an individual’s immigration status. This means those individuals will only be able to evidence their right to rent using the Home Office online service.
The Home Office online right to rent service sets out what information and/or documentation is needed in order to access the service. However, it will not be possible to conduct an online right to rent check in all circumstances, as not all individuals will have an immigration status that can be checked online at this stage.
In circumstances in which a Home Office online check is not possible, landlords should conduct a manual right to rent check. For British or Irish citizens who hold a valid passport (or Irish passport card) landlords can use the services of an IDSP instead of conducting a manual right to rent check if landlords wish.
When conducting follow-up checks for those who’s right to rent is time-limited, landlords may conduct either a manual check or use the Home Office online service where applicable. There are three steps involved in establishing and maintaining a statutory excuse against liability for a civil penalty:
1. Conduct a initial right to rent check before authorising an adult to occupy rented accommodation,
2. Conduct a follow-up check at the appropriate date if initial checks indicate that an occupier has a time-limited right to rent,
3. Make a report to the Home Office if follow-up checks indicate that an occupier no longer has the right to rent.
When to undertake an initial right to rent check
In order to establish a statutory excuse against a civil penalty, right to rent checks must be undertaken within specific time limits as prescribed:
A check on a person with an unlimited right to rent may be undertaken at any time before the residential agreement is entered into.
A check on a person with a time-limited right to rent must be undertaken and recorded no earlier than 28 calendar days (including Saturdays, Sundays and bank holidays) before the start date of the tenancy agreement.
However, there will be some limited circumstances where it is not possible to undertake checks before the residential tenancy is agreed. For instance, a prospective tenant may be overseas and wish to arrange accommodation for work or study in the UK in advance of their arrival. In these circumstances, landlords are permitted to check a person’s right to rent before they take up occupation of the property, rather than before the start of the residential tenancy agreement.
Manual document-based right to rent checks
There are three basic steps to conducting an initial document-based right to rent check:
1. Obtain original versions of one or more of the acceptable documents for adult occupiers,
2. Check the documents in the presence of the holder [footnote 1],
3. Make clear copies of the documents and retain them with a record of the date on which the check is made. For example: the date on which this right to rent check was made: [insert date].
Landlords must check the validity of the documents in the presence of the holder. The documents must be checked to ensure that:
They are genuine,
The person presenting them is the prospective or existing tenant; and
The photograph and date of birth are consistent across documents and with the person’s appearance.
Landlords must make a clear copy of each document, in a format which cannot later be altered, and retain the copy securely, electronically or in hardcopy. Landlords must make a record of the date on which the check was made and retain copies securely for at least one year after the tenancy agreement comes to an end.
For a manual check, landlords should take all reasonable steps to check the validity of the documents presented to them. If a landlord is given a false document, they will only be liable for a civil penalty if it is reasonably apparent that it is false. “Reasonably apparent” means: where a person who is untrained in the identification of false documents, examining it carefully, but briefly, and without the use of technological aids could reasonably be expected to realise that the document in question is not genuine.
For a step by step guide on how to complete a right to rent check please refer to the Landlord’s guide to right to rent checks.
List of acceptable documents for right to rent checks
The documents that are considered acceptable for establishing a statutory excuse when conducting a manual right to rent check are set out in two lists, List A and List B.
Where a right to rent check has been conducted using the Home Office online service, the information is provided in real-time, directly from Home Office systems and there is no requirement to see any or a combination of any of the documents listed below.
List A contains the range of documents which may be accepted for checking purposes for a person who has a permanent right to rent in the UK (including British and Irish citizens). If landlords carry out the prescribed checks, they will establish a continuous statutory excuse for the duration of that person’s tenancy. The landlord is required to check one document from List A (Group 1) or two documents from List A (Group 2).
List B contains the range of documents which may be accepted for checking purposes for a person who has a time-limited right to rent in England. If landlords carry out the prescribed checks, they will establish a time-limited statutory excuse. Landlords will be required to carry out a follow-up check as set out below.
Examples of the documents, how to check them and how to copy them can be found in the Right to Rent Checks: A user guide for tenants and landlords.
List A – acceptable documents to establish a continuous statutory excuse
If a prospective tenant can produce either one document from group 1 or two documents from group 2 then they will not require a follow-up check.
List A Group 1 – If a prospective tenant can produce one document from this group, then a continuous statutory excuse will be established
1. 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.
2. A passport or passport card (in either case, whether current or expired) showing that the holder is an Irish citizen.
3. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Landlord Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
4. A passport or other travel document (in either case, whether current or expired) endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK. [footnote 2]
5. An immigration status document (current or expired) containing a photograph issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay in the UK indefinitely or has no time limit on their stay in the UK.
6. A certificate of registration or naturalisation as a British citizen.
List A Group 2 – If a prospective tenant can produce any two documents from this group, then a continuous statutory excuse will be established
1. A birth certificate issued in the UK. [footnote 3]
2. An adoption certificate issued in the UK.
3. A birth certificate issued in the Channel Islands, the Isle of Man or Ireland.
4. An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland.
5. A letter which:
(a) is issued by a government department or local authority no longer than three months before the date on which it is presented,
(b) is signed by a named official stating their name and professional address,
(c) confirms the holder’s name,
(d) confirms that the holder has accessed services from that department or authority or is otherwise known to that department or authority.
6. A letter which:
(a) is issued no longer than three months before the date on which it is presented,
(b) is signed by a British passport holder who is or has been a professional person or who is otherwise of good standing in their community.[footnote 4]
(c) confirms the holder’s name,
(d) states how long the signatory has known the holder, such period being of at least three months’ duration, and in what capacity,
(e) states the signatory’s name, address, profession, place of work and passport number.
7. 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 confirming their status as an employee and employee reference number or National Insurance number and states the employer’s name and business address.
8. 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.
9. An identity card or document issued by one of His Majesty’s forces or the Secretary of State confirming that the holder is or has been a serving member in any of His Majesty’s forces.
10. A letter issued by His Majesty’s Prison Service, the Scottish Prison Service or the Northern Ireland Prison Service confirming that the holder has been released from the custody of that service no longer than six months before the date on which that letter is presented, and confirming their name and date of birth.
11. A letter issued no longer than three months before the date on which it is presented by an officer of the National Offender Management Service in England and Wales, an officer of a local authority in Scotland who is a responsible officer for the purposes of the Criminal Procedure (Scotland) Act 1995 or an officer of the Probation Board for Northern Ireland confirming the holder’s name and date of birth and confirming that the holder is the subject of an order requiring supervision by that officer.
12. 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 1st July 1998) or Part 2 of the Road Traffic (Northern Ireland) Order 1981 (to include the photocard licence).
13. A certificate issued no longer than three months before the date on which it is presented, by the Disclosure and Barring Service under Part V of the Police Act 1997, the Scottish Ministers under Part 2 of the Protection of Vulnerable Groups (Scotland) Act 2007 or the Secretary of State under Part V of the Police Act 1997 in relation to the holder.
14. A document, or a screen shot of an electronic document, issued no longer than three months before the date on which it is presented, by His Majesty’s Revenue and Customs, the Department of Work and Pensions, the Northern Ireland Department for Social Development or a local authority confirming that the holder is in receipt of a benefit listed in section 115(1) or (2) of the Immigration and Asylum Act 1999.
15. A letter which:
(a) is issued no longer than three months before the date on which it is presented,
(b) is issued by a public authority, voluntary organisation or charity in the course of a scheme operated to assist individuals to secure accommodation in the private rented sector in order to prevent or resolve homelessness,
(c) confirms the holder’s name,
(d) states the address of a prospective tenancy which the authority, organisation or charity is assisting the holder to obtain.
16. A letter which:
(a) is issued by a further or higher education institution in the UK,
(b) confirms that the holder has been accepted on a current course of studies at that institution,
(c) states the name of the institution and the name and duration of the course.
List B - acceptable documents to establish a time-limited statutory excuse
If a prospective tenant can produce one document from this group, then a time-limited statutory excuse will be established. A follow-up check will be required within the timescales outlined in Eligibility Periods.
1. A current passport or travel document endorsed to show that the holder is allowed to stay in the UK for a ‘time-limited period’.
2. 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.
3. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Landlord Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
4. A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey, or Isle of Man, showing that the holder has made an application for limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules (as the case may be), together with a Positive Right to Rent Notice issued by the Home Office Landlord Checking Service.
5. A document issued by the Home Office, confirming an application for leave to enter or remain, under Appendix EU to the immigration rules (known as the EU Settlement Scheme or EUSS), made on or before 30 June 2021 together with a Positive Right to Rent Notice issued by the Home Office Landlord Checking Service.
6. A Certificate of Application (non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain, under Appendix EU to the immigration rules (known as the EU Settlement Scheme or EUSS), on or after 1 July 2021, together with a Positive Right to Rent Notice issued by the Home Office Landlord Checking Service.
7. A passport of a national of an EEA country, Australia, Canada, Japan, New Zealand, Singapore, South Korea or the USA who is a visitor to the UK together with evidence of travel to the UK that provides documentary evidence of the date of arrival in the UK in the preceding six months.
Making a report to the Home Office
If the follow-up checks indicate that an occupier no longer has the right to rent, or an existing occupier or occupiers are not co-operating, the landlord must make a report to the Home Office using the online form. The landlord must make the report as soon as reasonably practicable after discovering that the occupier no longer has a right to rent, or they are faced with non-compliance and before their existing time-limited statutory excuse expires.
Copies of documents (physical or digital) should not be submitted when making a report, but should be retained as set out in initial right to rent checks to satisfy a right to rent check and for future enquiries.
Making a report in the specified way will generate a unique reference number. Landlords must ensure they keep a copy of that number as evidence of their continued statutory excuse. All copies of documents taken should be kept for the duration of the tenancy agreement and for at least one year thereafter.
Making a report to the Home Office maintains a statutory excuse where the eligibility period in respect of an occupier has expired. A statutory excuse can only be established initially by conducting checks before the beginning of the tenancy.
A landlord who has failed to conduct the requisite checks before the beginning of a tenancy cannot establish a statutory excuse by making a report to the Home Office at a later date.