Liberty's 'right to rent' guide

Posted by Rosie Brighouse on 22 November 2016

Read our nine practical tips on what to do if you’re a potential tenant and are worried about what the 'right to rent' scheme means for you.

Finding a new place to rent can be stressful at the best of times – but recent changes brought in by the Government have made the process even more difficult, especially for certain groups.

As of February this year, landlords caught renting to someone without the legal right to be in this country can be fined up to £3,000. The same applies to letting agents who arrange a tenancy for someone here without permission.

Not content with imposing these fines, the same behaviour will become a criminal offence from 1 December. Astonishingly, landlords and letting agents could be imprisoned for up to five years simply for letting a residential property to the wrong person.

With such enormous penalties hanging over them, we can expect that landlords and letting agents will want to be 100 per cent sure their new tenants have the right to be here.

But they may go further than just asking for the necessary documentation. They might feel more nervous about somebody with a foreign accent, or whose paperwork is a bit complicated. If inundated with queries for a property, they might feel it makes sense not to respond to anyone with an unfamiliar surname. They might find it tempting to consider letting only to tenants who are obviously British, with skin colour, surname and accent all serving as proxies in this regard. This would usher in racial profiling in the housing market, by the backdoor.

Evidence from the scheme’s initial pilot project all pointed in this direction. But the Equality Act 2010 (EA) prohibits landlords and letting agents from discriminating against any potential tenants on the basis of race, colour, nationality or ethnic origin.

Despite the EA’s protections, Liberty is deeply concerned that this policy will encourage serious discrimination in practice and we are campaigning for the policy to be repealed.

So what can you do?

If you’re a potential tenant and are worried about what the 'right to rent' scheme means for you – here are some tips:

1. If you’re not going to be renting in England, then you don’t need to worry about right to rent. Though it may eventually be rolled out to Wales, Northern Ireland and Scotland, the scheme currently only applies in England.

2. Similarly, if you’re simply renewing an existing tenancy that started before February 2016, the scheme doesn’t apply (with some exceptions in Birmingham, Wolverhampton, Dudley, Sandwell and Walsall).

3. If you’re going to be entering into a new tenancy in England, expect to have to provide proof of your right to rent. The Government’s advice to landlords is clear – to avoid being discriminatory, they should ask everyone for their documents.

If you’re a British, Swiss or European Economic Area citizen, make sure you know where your passport is. It doesn’t have to be in-date – an expired passport is still good enough.

If you’re a British, Swiss or European Economic Area citizen but don’t have a passport, you’ll need to provide two documents from ‘Group 2’ of ‘List A’ under paragraph 5.2 of this Code of Practice – for example, your birth certificate and a current driving licence.

If you’re not a British citizen, the evidence you have to provide will depend on whether you have an indefinite right to be in the UK, or whether you have a time-limited right – have a look at the links provided in point 9.

If you can’t provide the necessary documents, but do have the right to rent, your landlord or letting agent can request a check from the Home Office Landlords Checking Service, which should respond within two working days.

4. Remember that the evidence requirement will apply for all adults living in the property, regardless of whether they’re named on the tenancy agreement. It doesn’t apply to children (anyone under the age of 18).

5. Expect the landlord or letting agency to keep copies of your documents, either in paper form or electronically. These are obviously very important personal documents and you might want to ask for written confirmation that they will be held securely, and only used to prove your right to rent.

Home Office guidance to landlords is that they should keep copies of these documents for a year after the end of the tenancy – so when your tenancy finishes you might want to put a reminder in your diary for a year later, to check the copies of yours have been destroyed.

If the landlord or letting agency fails to do so, they could be in breach of the Data Protection Act 1998.

6. Seek advice. If you’re not sure whether or not you have the right to be in this country (for example, you might have been brought here by your parents when you were young, and don’t know whether they ever applied for you to be here), seek urgent advice from a reputable solicitor specialising in immigration law.

7. The landlord or letting agent should check your documents with you face-to-face. However if it’s impractical for you to meet in person (for example, if you’re moving from another country, or from one side of the country to the other) then suggest a video call. The Home Office guidance is clear that this is a satisfactory alternative to a face-to-face check.

8. If you feel you’ve been discriminated against or otherwise treated unfairly by a letting agency or landlord, seek advice. The same applies if you’ve been let down by the Landlords Checking Service.

Liberty’s Advice and Information service will be happy to assist you – just give us a call. Make sure you keep copies of any evidence you have which shows the discrimination, and take notes of any key telephone calls.

9. Finally, if you have any concerns at all, read up on your rights. A few organisations have produced easy-to-use factsheets and guidance, or you might want to have a look at the Home Office’s official guidance to landlords and tenants:

Rosie Brighouse

Rosie Brighouse

Legal Officer