Right to Rent update

The High Court ruled in March 2019 that Right to Rent, which was introduced in England by the Immigration Act 2016, was against the European Convention of Human Rights. Rather than risk a criminal conviction for renting to someone living in the UK illegally, some landlords were choosing to rent only to people with British passports. This, claimed the Joint Council for the Welfare of Immigrants (JWCI), caused immigrants living legally in the UK to take twice as long to find a property to rent, hence the claim of discrimination. This Court decision did not remove the requirement for the Right to Rent checks.

The Government appealed the decision and on 21 April 2020 the Court of Appeal allowed the Government’s appeal. There is extensive guidance on avoiding discrimination when doing the Right to Rent checks and it is important that agents follow this guidance to avoid claims of discrimination. It now appears that the JWCI will appeal to the Supreme Court. The journey may not yet be over.

In the meantime………….

The Brexit Issue
We are still complying with EU rules although we are barrelling through the transition period which will come to an end, apparently, on 31 December this year. The big caveat to this of course is the upheaval to our lives caused by the pandemic, Covid-19. Video-conferencing trade talks have been progressing, despite earlier doubts that they would. According to both sides progress has been ‘disappointing’. Any extension to Brexit would have to be agreed by 30 June 2020. With the effects of COVID-19 lockdowns moving at such different speeds in different countries within the EU and EEA it is difficult, if not impossible, to predict what may happen next. Any future trade deal needs the agreement of all EU countries so that alone will be an achievement in the current pandemic.

The often repeated position of the UK appears to be a deal or no deal, we leave on 31 December 2020. Whilst we are in this transition period, and except for the current restrictions, EU nationals can continue to take up residence within the UK and apply for settled status, we can travel and trade freely across borders up until the end of the transition period. Applications for settled status can be made up until 30 June 2021 although the applicant should have started living in the UK by 31 December 2020. To all intents and purposes until then nothing changes and nor will it whilst we are in the transition period, extended or not.

Beyond the Transition Period
Those EU Nationals who are granted ‘settled status’ or ‘permanent residence’ will be able to freely live and work within the UK. Those who took up residence later can apply for ‘pre-settled status’ which will grant them the right to live and work here for up to five years at which point we assume they will be able to apply for ‘settled status’.

Anyone arriving from the EU or EEA after 31 December 2020, it is thought, may require a visa although we understand that both the EU and UK have indicated that they would be in favour of a 90 visa-waiver scheme. The details of any such scheme will be of interest to both landlords and agents alike as those with visas will need to live somewhere and short-term tenancies do not appear to be high on the Government’s agenda and frankly offer little security to landlords. It may well be that the ‘Airbnb’ model or Company Lets may be those temporary resident’s main options.

This is all relevant to landlords, agents and anyone granting a tenancy as there will, almost inevitably be either new documents to check or new procedures in relation to Right to Rent checks, if they survive at all.

Temporary modifications to the Right to Rent
During the current lockdown and following the Health Protection (Coronavirus, Restrictions) Regulations 2020 the process of carrying out Right to Rent checks has, temporarily changed.

The Government has reiterated that Right to Rent checks must continue. Right to Rent checks are not only required at the start of a tenancy but also repeat checks are required when a tenant or other occupier does not have a permanent right to remain. A follow up check is required upon expiry of the person’s visa or twelve months from the last check, whichever is the later. The process of carrying out the check is considered to create unnecessary travel.

Whilst it has always been possible to carry out a part of the Right to Rent check by video link it was always reliant upon the person conducting the check having the original documents in their possession to verify the identity and to check the authenticity of the document e.g. that it was not clearly a forgery or had not been tampered with. This part of the check has now been temporarily suspended and the document(s) can be scanned and emailed to the agent and that scan will count as the original until normal service is resumed. At that point the full check would then have to be retrospectively carried out.

Specific wording has been provided to add for both the scanned document and for the retrospective check for you to have been deemed to have carried out a valid Right to Rent check. On the first COVID-19 check you should add “an adjusted check has been undertaken on [insert date] due to COVID-19”. Then when the lockdown is lifted and normal checks can be completed you have to complete the normal check but write “the individual’s tenancy agreement commenced on [insert date]. The prescribed right to rent check was undertaken on [insert date] due to COVID-19” on the second copy.

Below are links to the relevant guidance for Right to Rent checks to be carried out during the coronavirus pandemic (the temporary measures) and a link to the standard guidance.

https://www.gov.uk/guidance/coronavirus-covid-19-landlord-right-to-rent-checks
https://www.gov.uk/government/collections/landlords-immigration-right-to-rent-checks