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Property? Check. Passport? Check. Right to Rent…..?

Posted on 12th February 2016

From the 1st February 2016 a new “right” has been created. Alongside the right to free speech and private and family life, there now stands a right to rent. Surely more rights are a good thing, I hear you say? Well, no. Not in this case.

The new law should really be described more as a restriction on finding a home. It affects the provision of accommodation to anybody who is looking for a place to live in the UK. The restriction applies to all rooms, lodgings and tenancies, even house guests if they propose to pay rent. The only exception to the new law is short term holiday lets that are not envisioned to be a person’s permanent home.

The law imposes an obligation on landlords to ensure that a person that they allow to occupy accommodation has the necessary immigration status to remain in the UK, or special permission from the home office. There is a limited list of documents that a landlord must see in their original form to satisfy themselves that the prospective tenant has the right to rent. These documents must be copied and stored throughout the tenancy and for 12 months after it has ended. If a landlord does not carry out these checks, they can be subject to a fine of up to £3000 per adult household member.

This means that if you do not provide your identification documents to the landlord, they will have to refuse you the accommodation or risk a fine if your immigration status is not sufficient.

Certain people have an unlimited right to rent in the UK, those who are citizens of Britain, the European Economic Area, Swiss nationals or those who have a permanent right of abode or indefinite leave to remain in the UK. Other groups of people have a “time limited” right to rent. This group includes those with limited leave to remain in the UK (such as a student visa) or some groups who have rights under European law (such as family members of EU citizens).

There is a third group of people who must apply to the Home Office for special permission to rent property. This group reflects the fact that immigration and status is a complicated business where some fall through the cracks of who does and does not have the right to be in the UK.

Finding accommodation in the UK, especially in overcrowded areas like London, is already very tricky. Lettings agents usually provide some protection for tenants by vetting landlords. However, they also regularly require reference fees, agency fees, holding fees and guarantors who own property before they will consider a tenant. These barriers can be particularly difficult for person from abroad but it also affects the low paid and those who rely on assistance from the local authority to pay their rent.

People in these categories are often restricted to dealing with landlords directly, usually through lettings websites. The process holds its own perils such as the “bogus landlord” scams where prospective tenants can lose thousands of pounds securing properties that a “landlord” has no intention of renting to them.

The new rules have similar opportunities for abuse where a tenant is asked to hand over sensitive information that can be used for identity theft. Therefore, it is important for potential tenants to ensure that landlords have safeguards in place when storing their sensitive information. Landlords equally need to ensure that they are not breaching the Data Protection Act 1998 by mishandling tenants’ information.

To avoid a “right to rent” penalty, a landlord must undertake initial right to rent checks on all of the adults who are proposing to live in a property, not just the main tenant. These must be carried out before the contract starts. There are 2 lists of acceptable documents. The first list (List A, Group 1) contains documents that the landlord does not need to check again, these include;

  1. Passport
  2. EU Identity card
  3. Home office registration certificate
  4. Immigration status document
  5. Certificate of naturalisation as a British citizen

There is a second group of (List A, Group 2) documents, which can be viewed as less central to a persons identity, these include a birth certificate, letter from an employer or a letter from the DWP. A full list of the documents is listed in the Code of Guidance provided by the government.

Where a person produces 2 documents from List A, Group 2 the landlord will be exempt from a fine when the tenancy begins. If you are concerned about releasing your identity documents, this list could be useful to offer some protection from releasing sensitive information to a potential landlord.

There is a third group (List B) documents, that include non EEA ID cards and other papers that might suggest a time-limited right to rent. A landlord must conduct follow up checks when these documents are provided in order to avoid a fine.

A landlord will only receive a fine if they rent to a person who has no right to rent, or a time limited right to rent where no follow up checks are carried out. In practice, initial findings from a JCWI report suggest that this means that these checks are more likely to be carried out where a person appears “foreign”. Worryingly, 27% of landlords surveyed said they would not engage with those they suspected of having foreign accents or names while 42% said it would affect their decision to rent to someone without a British passport.

The government has recognised that the new law has the potential to cause discrimination against people from overseas and have published a separate guidance on landlords’ duties to avoid discrimination under the Equality Act 2010. With migrants in the UK more than twice as likely to be renting privately, this is likely to present a problem for many people searching for a home.

However, it is often hard to prove that a landlord has discriminated against you by offering the tenancy to someone else, unless there is a specific statement or a pattern of behaviour that can be shown.

If you think that you have been discriminated against in looking to rent a property, you may want to seek advice from the Equality and Advisory support service.

It remains to be seen whether there will be many discrimination claims against landlords especially with it being so difficult to prove and with tenants more concerned about where they are going to live.

By Suzanne Bird, Social Housing Solicitor and Riaz Munir, Social Housing Trainee Solicitor

Our Social Housing Solicitors are backed by nearly four decades of experience. Our legal practice and team of London Solicitors have a strong track record of achieving favourable client outcomes. For expert legal advice use our contact form or call us on 0808 250 6017 today.