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Michael Moore’s Newsletter Editorial – Right To Rent

5th September 2019

There are now 127 pieces of legislation an estate agent or landlord has to comply with before letting a residential property. When I started back in 1979 I don’t think we had more than a dozen! How things change.

I thought we’d had this year’s last change in legislation when the Tenant Fee Act came into being on 1st June. This has seen one of the biggest changes to the Private Rented Sector since the inception of Assured Shorthold Tenancies in the Housing Act of 1982. But alas, there appears to be more for agents and landlords to deal with. I now understand the UK Border Force has changed how it processes certain individuals coming into the UK, and these changes will necessitate agents and landlords having to adapt their processes once again – or face a civil penalty.

Apparently, individuals from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA (a group known as B5JSSK) have been able to enter the country using eGates at UK points of entry since 20 May 2019 (I’ll admit, this information has only just landed on my desk, despite my somewhat obsession with ensuring we are legislatively compliant). The use of eGates means those individuals will not have their passport endorsed with a stamp, which agents and landlords have been able to rely upon as part of checking a tenant’s Right to Rent. Instead the visitor will be verbally advised of their length of stay and associated conditions by border force staff. This provides us with no proof they have the Right to Rent. Ouch!

If a visitor from one of these countries intends to reside in the UK for more than six months, they will need a visa. That’s fine, as we can use this to check their Right to Rent, and take a copy for our records. Anyone from one of the B5JSSK countries who is not a visa holder is automatically granted leave to enter the UK for a maximum period of six months, and has the Right to Rent a property for the duration of their lawful stay. Without a stamp in their passport or a visa how do agents and landlords prove they have a Right to Rent?

The Home Office guidance states:

“If they wish to rent accommodation in the private rented sector as their only or main home, a landlord will be able to establish the individual’s Right to Rent status by checking their passport together with ‘evidence’ of the date they last travelled to or entered the UK.”

Apparently, acceptable ‘evidence’ of entry to the UK may include (but is not restricted to) one of the following, or a combination of:

  • An original or copy* of a boarding pass or electronic boarding pass for air, rail or sea travel to the UK, establishing the date of arrival in the UK in the last six months;
  • An original or copy* airline, rail or boat ticket or e-ticket establishing the date of arrival in the UK in the last six months;
  • Any type of booking confirmation (original or copy*) for air, rail or sea travel to the UK establishing the date of arrival in the UK in the last six months;
  • Any other documentary evidence which establishes the date of arrival in the UK in the last six months.

*a copy can be a hardcopy such as a photocopy or an electronic copy such as a screenshot

I sincerely hope my rentals team don’t ask for matching uniforms and reflective tabards in order to carry out the check of boarding cards!

Immigration entry rules are governed by a different framework to Right to Rent checks. The legislation states the minimum period for a time limited check is 12 months. Agents and landlords can only schedule a follow up check prior to the end of the 12 month period. This is despite potentially knowing that the tenant initially had leave to remain for only 6 months. How does that work? I accept that in many cases the tenant will have left before the end of the 12-month period. But in the event of a challenge, evidence of a correctly administered 12-month check will provide the basis for a statutory excuse against a civil penalty. As with all legislation, ignorance is no excuse. Agents and landlords must make reasonable enquiries to find out who will be living at the property and make checks on all adult occupiers.

If the Home Secretary Rt Hon Pritti Patel has her way and from the 1st November this year Government abandons its prior commitment of Right to Rent until January 2021 (Immigration Minister Caroline Noakes published a statement in April this year to that effect), then this may not be much of an issue – there will theoretically be fewer overseas visitors coming to the UK anyway who can stay for even 6 months. But I have a feeling the hard-line approach from Boris and his team will soften if the EU ‘gives’ a little on the Irish Back-Stop, meaning all agents and landlords need to be very vigilant about who they rent properties to in 2020, and beyond, to avoid a civil penalty.

If you are a private landlord doing your own letting and management please be careful. I would strongly recommend you use a competent letting agent to ensure you are protected from both this legislation and any possible accusation of discrimination if you turn tenants away.

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