Right to Rent Changes

2nd October 2020 Commercial Litigation

The Right to Rent scheme was substantially updated recently through The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendments) Order 2020 and accompanying Revised Code of Practice. The new version comes into force on 2 November 2020.

The Government had previously made unlawful amendments to the operation of the Right to Rent, which did not go through Parliament. Most notably they had created a new structure for B5JSSK nationals (those people from USA, Canada, Australia, New Zealand, Japan, Singapore and South Korea) who were entering the country and allowed to stay for six months. The new amendments finally tidy this up so that these various changes are now lawful.

The 2020 Order amends The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014.

The new processes include:

  1. The above-mentioned structure for B5JSSK nationals. This allows people holding a passport from these countries who also have a paper or electronic document (such as a boarding pass) showing entry into the UK within the last six months to have a right to rent. They can also get an approval via the Landlord Checking Service. This will, as normal, give them a 12 month right to rent even though they only get a six month visa as of right. This will massively streamline the process for these countries and may be useful to some landlords letting to business people.
  2. The formal introduction of the new online right to rent process. This has been trialled for employers and been around in a trial format for some time. Essentially, entrants to the UK will have an online page which includes their photograph and details of their rights to work and rent. They can generate and give to landlords a special code which with their date of birth will allow to that page and will allow a landlord, or their agent, to view the relevant information. Landlords and agents will then need to verify that the photograph on the web page is of the correct person and also keep a copy of that web page for 12 months after the end of the tenancy.
  3. The document lists have been revised although the changes are minor.
  4. The process for checks has also been revised in respect of when these can be done. Those with an unlimited right to rent can now be checked at any time prior to the tenancy while those with a time limited right to rent must be checked in the 28 days before occupation. Again, this makes lawful a previously unlawful tweak to the system.

The overall obligation has not, however, altered. Landlords will need to carry out a right to rent check on all tenants. This includes tenants checking their own sub-tenants and also includes lodger situations. They must either establish a permanent right to rent which usually means the person has a permanent right to reside in the UK or is a UK citizen or has the same rights in an EEA country or Switzerland (the Right to Rent system is currently still recognising EEA national in full). Alternatively, a landlord must establish a time limited right to rent and then check the documents again after 12 months or the time period which the document shows that the person has a right to be here, whichever is the later. The documents must be checked with the person there in front of you or via live video link and a copy must be kept for 12 months after the end of the tenancy.

In short, the changes are still fairly cosmetic and make things a little easier in respect of certain groups. However, there is still the obligation on landlords to behave as unpaid border control officers and to report tenant to the Home Office. This system is also likely to see a more radical change next year as the UK moves towards is proposed “points based immigration system” and, presumably, also moves to downgrade EEA and Swiss nationals to being of similar immigration status to other countries for which we normally allow time-limited visa free access (as opposed to unlimited visa free access) with the option to extend in certain circumstances.

Agents and landlords will want to review the new code and will need to keep their eyes on the changing picture for the Right to Rent. There remains a lighter-touch regime in place for Right to Rent during the Covid pandemic as well which agents and landlords should be aware of.​​​​​​

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David Smith is a Partner located in Londonin our Commercial Litigation department

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Neli Borisova is a Solicitor located in Londonin our Commercial Litigation department

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