Your guide to Right To Rent checks and the new digital checking system
From 6 April 2022, lettings legislation will change to include how landlords can use certified Identity Service Providers (IDSPs) to digitally check the identity and eligibility of British and Irish citizens to rent a property in England. Here's what landlords need to know about how to stay compliant with their right to rent obligations.
Letting agents and landlords need to check the right to rent for each of their tenants in England before the start of the tenancy. Here's a breakdown of how to conduct those checks.
Landlords and letting agents must check the right to rent of all their adult applicants in England before they enter into a new tenancy agreement. This is to "prevent those without lawful immigration status" from renting a property illegally. Conducting the checks accurately and keeping records of those checks will help landlords and agents avoid fines for non-compliance.
An overview of the right to rent checks
You need to check the right to rent of your prospective tenant and anyone else that will use the property as their main home, before the tenancy agreement officially starts - and in the 28 days before that start date for tenants with a time-limited right.
It's important that you conduct these checks and keep accurate records as you could face an unlimited fine and up to five years in prison if you are found to have knowingly rented to someone who didn't have the right to live in England.
Some applicants will have "unlimited right to rent". This covers British and Irish citizens, those with EU Settled Status, and people who have the "right of abode", who have indefinite leave to remain, or simply have no time limit on their stay in the UK.
Other applicants will have a "time-limited" right to rent, including those with pre-settled status. For this group of tenants, you'll need to understand how long they're eligible to stay in England and then do a follow up check before that period ends, to make sure you aren't liable for any penalty.
If your tenant loses their right to rent during their tenancy, you'll need to report this to the Home Office.
Conducting the right to rent checks
Conducting a manual check:
To conduct a manual check, you need to see the original documents that prove your tenants' right to rent - you can find a list of accepted documents on the government's site.
You then need to check these documents in your applicant's presence, to assess if the documents are genuine and not tampered with, and that your applicant's identity matches the document. Photographs and dates of birth should be consistent across the documents and, if any names differ, your applicant needs to provide proof of why. You also need to check that their immigration leave to remain has not expired.
When you've checked the applicant's documents, you'll need to keep records of this check, with the date it took place, and keep that information for at least a year after the tenancy ends.
Tenants have the right to choose if they wish to demonstrate their right to rent in England with their physical documents or through the Home Office online service, outlined below, when this service is an option for them. On the other hand, some tenants with an eVisa will only be able to use this new online service to prove their right to rent.
Using the Home Office Landlord Checking Service:
If the applicant doesn't have the necessary documents, you can use the Home Office Landlord Checking Service to conduct the check. You can request this check by completing an online form. You'll need to keep a record of the certificate of application, and should wait until receiving an answer before starting the tenancy agreement.
You'll receive either a positive or negative response from the Home Office on whether your applicant has the right to rent the property or, if the service hasn't considered your request after two working days, you'll receive confirmation that you can let your property to the applicant, valid for 12 months.
Using the Home Office online service:
For some applicants, you can now use the Home Office's online service, introduced to make checks post-Brexit. Applicants eligible for this service are:
• Non-EEA citizens with a biometric resident permit or card
• EEA citizens and their family members with Settled Status
• A digital Certificate of Application to the EU Settlement Scheme issued on or before 30 June 2021
• Those with status under the points-based immigration system, a British National Overseas (BNO) visa, or a frontier workers permit
Your eligible applicants will need to give you their share code - which they can get on the government's site and will expire after 30 days - and date of birth. You'll need to then enter these details into the online service, with your applicant present via video call. This means that you can then check the photo on the service's profile page against your applicant. You'll then need to save their profile page as evidence of the check.
From 6 April 2022, if your applicant has a Biometric Residence Card or is a Permit holder, you will no longer be allowed to check their documents manually. You will have to use this online service.
Checking nationals of the EEA, Australia, Canada, Japan, New Zealand, Singapore, South Korea or the USA who are visitors to the UK:
Since 2019, B5JSSK citizens have been able to arrive in the UK via eGate, and therefore have no stamp in their passports for the date of arrival. They will have the right to stay in the UK for 6 months, but then will need a visa to stay for longer.
You'll need to first check their passports and evidence that they arrived in the UK within the last 6 months. This evidence could be their boarding pass, travel ticket, booking confirmation - or another document which confirms the date of their arrival in the UK. The check can be done either in person or over video call but you - the landlord or agent - will need to hold the original documents for the check.
Even though your tenants should have their visa once this 6-month period ends, the right to rent framework requires you to conduct another check before the end of a 12-month period instead, to prove that your tenants have a right to continue renting. Propertymark advises that "evidence of a correctly administered 12-month check" will give you a "solid basis" to avoid fines.
Temporary Covid-19 measures:
From 30 March 2020 to 5 April 2022, temporary Covid-19 adjusted measures are in place. This means that right to rent checks can take place over a video call and with scanned or photographed versions of the relevant documents during this time.
You should ask your tenant to share copies of the original documents with you, then arrange a video call to check that the tenant applying is the same as in the documents. They should hold up their original documents to the camera, so you can check they are the same as the copies too. You need to then record the date you made this check, with the note “adjusted check undertaken on [insert date] due to COVID-19”.
Future digital checks:
The Home Office will make changes to legislation from 6 April 2022 to allow landlords and agents to use "certified Identification Document Validation Technology (IDVT) service providers" to digitally check the right to rent of British and Irish citizens.
This means that landlords will be able to verify their tenants' identity remotely, and prove their eligibility to rent. With the new process, tenants will be able to upload images of their personal documents, instead of sharing physical documents with their landlords, and will help landlords recognise fraudulent documents. Until this new process comes into effect, landlords and agents should continue to follow the standard processes outlined above.
What is an IDSP (Identity Service Provider)?
IDSPs are "approved companies" that will be responsible for validating the identity of an applicants on behalf of landlords. The UK Accreditation Service (UKAS) will certify these providers, and they will need to meet the requirements of the UK Digital Identity Attributes Trust Framework and have appropriate systems in place to keep your applicant's information securely. The full list of certified providers will be published on the government's site.
What will IDSPs check?
The IDSPs will run through the following steps to check your applicant's identity:
• Obtaining ID evidence
• Checking the evidence is genuine or valid
• Checking the claimed identity has existed over time
• Checking if the claimed identity is at high risk of identity fraud
• Checking that the identity belongs to the right person
Each step will be scored to give a total "level of confidence" (LoC) score - at least a medium score is required for the ID check to pass for right to rent purposes. The providers will then use the following documents to check if your applicant has the right to live in England:
• British passports
• Irish passports
• Irish passport cards
If your applicant can't provide these documents, this means that you may have to conduct the check manually, or use one of the Home Office's other digital services.
What will landlords and agents need to do?
You will need to provide the IDSP with certain information to run the right to rent check. This includes:
• The full name of your applicant
• Their date of birth
• An image of the biometric page in their ID
• A photo of them
In some instances, you may still be required to check these documents manually - for example, if your applicant has an expired passport. You will also still need to check that the ID photo you provide to the IDSP is a match for your applicant, either face to face or through a video call.
Agents and landlords who employ staff will be responsible for providing training where relevant on how to use the IDSPs. You'll also still be responsible for undertaking due diligence checks - the ID verification process simply form part of the risk assessment.
Although the IDSPs will essentially act on your behalf to carry out the right to rent check on an individual, landlords and agents are still responsible for the check taking place and will need to ensure that they are only using a certified provider. You'll still need to retain proof of the checks that the certified provider made for at least one year after the tenancy ends, to "have a statutory excuse" against fines.
This article is correct at time of writing 16/02/22 is intended as a guide only and does not constitute legal advice. For more information, visit gov.uk.