Most landlords are aware that since 1 February 2016, under the Right to Rent scheme, they are required to check that all tenants who occupy their properties have legal status to live in the UK.
These checks were introduced by the Home Office in an attempt to make the UK a less attractive option for people wishing to live here illegally.
In practical terms this means that in England there is an obligation on a landlord to undertake passport and immigration checks prior to letting out a property. Currently, these rules do not apply in Wales, Northern Ireland and Scotland. Landlords should note that a failure to carry out these checks could leave them facing hefty civil penalties of up to £3,000.
In an article in March this year, we reported that the High Court had made a ruling of incompatibility between the Right to Rent legislation and the Human Rights Act, calling into question the legality of the Right To Rent checks. However, at present, the Right to Rent provisions remain in force and there are no immediate changes proposed to the operation of that policy. This means that landlords and letting agents remain obliged to conduct passport and immigration checks.
Currently, if a proposed tenant is:
- a British citizen;
- from a European Economic Area (EEA) nation; or
- a non-EEA national with the right to be in the UK indefinitely and do not have any restrictions on their right to stay in the UK;
then their landlord or letting agent will not need to carry out any further checks.
Will this still be the position for European tenants post-Brexit?
If the UK leaves the EU without a deal on 31 October 2019, then it is thought that until 31 December 2020, there will be no changes to the right to rent for EU, EEA and Swiss citizens and their family members living in the UK. This is the date given as the end of the Brexit transition period.
Thereafter, according to Government guidance, people arriving from 1 January 2021 will be subject to a new immigration system. It is not thought that under the new system landlords or letting agents will be required to undertake retrospective checks on existing EU, EEA or Swiss tenants.
Should you stop letting to European tenants now?
No. Landlords are under a duty not to discriminate against tenants on the grounds of their race or nationality. Accordingly, until after 31 December 2020, landlords cannot require EU, EEA or Swiss citizens to prove that they have status under the EU Settlement Scheme or European temporary leave to remain.
What happens if we leave with a deal?
If and until that happens, it is impossible to speculate on the legal position in relation to Right to Rent checks. We shall provide a further update as soon as more information is available.