Right to rent Q&A with David Smith of JMW Solicitors

5 July 2021

David Smith, Partner at JMW Solicitors LLP, answers letting agents' questions on right to rent, from the changes to the process for EU, EEA, and Swiss citizens to the requirements when "Covid-adjusted" checks end.

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What is the new right to rent process for EU, EEA, and Swiss citizens?

EU, EEA, and Swiss nationals no longer have a right to enter and leave the UK in the same way. If they were already here, they will have to obtain settled status or they will lose their right to be here and they will lose their right to access services - that's the same, of course, for UK nationals in other European countries. So they will need to have settled status or, if people want to come into the country from the EU, they will need to have a visa and they will need to be able to prove their status to you. Most of this is being done through an online digital portal. It's not universally done through the online digital portal because some people may actually have passports with visas in them, but anyone who has settled status because they were here already, that is a digital-only status and they will only be able to show that through the new online portal.

People who are coming into the country from the EU to reside here permanently are likely to end up with a biometric visa and they will actually be able to show you either a physical document or allow you to use the online portal. Over time, it is likely the online portal will expand. It's currently quite limited in scope, but the clear aim of the government is to move all of this into a digital sphere and to have everyone demonstrating both their right to rent and in fact, their right to work, entirely through a digital mechanism.

What are the changes to right to rent for B5JSSK nationals?

B5JSSK means Big Five - that is the traditional "big five" from the Second World War - so the UK, USA, Canada, Australia, and New Zealand.  Obviously, we don't need to worry about the UK so much in this context, because it's an immigration thing. Then  J, Japan, S, Singapore, and SK, South Korea. So B5JSSK in this context refers to the United States, Canada, Australia, New Zealand, Japan, Singapore, and South Korea. People from any of those countries have - for a little while now actually - been able to enter the UK using the biometric passport, the electronic passport gates you see at major airports like Heathrow.

Anyone from a B5JSSK country who has a visa, which they've obtained electronically, is able to pass through a biometric passport gate, and those people will have a right to rent for six months. If they're entering the UK for more than six months, they have to get a proper visa, which will be stamped into their passport. But if they want to stay in the UK for less than six months, they are allowed to establish a right to rent using their passport from one of those countries and evidence of entry into the UK in the last six months - that could be physical or electronic, so they could show you a boarding pass from an airline, physically or on their mobile phone, and you take a copy of that and that is sufficient to establish a time-limited right to rent for six months. But it's a time-limited right to rent.

From 1 July 2021, the B5JSSK rules also apply to EU, EEA, and Swiss nationals. So, despite the fact that I've just cheerfully said EU, EEA, and Swiss nationals need a visa to come into the UK, if they're coming to the UK for less than six months, they can obtain that visa electronically, it won't be in their passport, and they can use the electronic passport gates - you don't need to use the online service to check them. What you actually can do is look at their passport, see they're from France, see their boarding pass that shows they've landed in the UK three days ago, and those two documents together are enough to give you a time-limited right to rent for a minimum of 12 months, at which point you would need to recheck them using the traditional method of rechecking, and that recheck will almost certainly be using the online system because they then would have applied for an online status. 

If I undertake an online right to rent check on the government website, do I also have to physically see the passport document after 31 August 2021?

If you're using the online website, which is primarily at the moment for people who are settled status or have a biometric permit, you do not need to see a physical document. It's an online-only check. You do not even need to see them face-to-face. You can do it by video call. What happens is they can either give you a code and you then go to the government's website - and do be very careful that you're going to the right website, fake websites will appear at some point, so you must use the government's website - and you will type in the code plus the person's date of birth, and that will then take you to a page where you can check.

You must check it - you can't have the tenant log in and show you it on their phone or on a device. You must log in on your own machine and use the code. Or, alternatively, the individual could send you a share code from a specific email address,  right.to.rent.service@notifications.service.gov.uk, with a link in it and you will then be able to click on to view the tenant's status. You will need to make sure that any filters are allowing emails from that email address through, but also you will need to be careful because again, fake email addresses will spring up, to be sure that you've got it from the right place and it's not a scam. 

What happens when "Covid-adjusted" checks end? Do we go back to how we were carrying out right to rent checks before Covid-19?

It kind of depends. If you're checking somebody who is a UK national or an Irish national, then you would use the traditional system, because UK and Irish nationals are not covered by settled status, so you would just look at that passport as you've always done. If you're checking somebody who has already achieved settled status in the UK, then you will need to use the new digital system because the only way to prove settled status in the UK is the digital system after 1 July 2021. 

If they're from the EU, EEA, or Switzerland, then you might be using a passport or a boarding card if they've just arrived. If they've been here for a while, then it will be either a visa or settled status scheme. If you're checking someone who is a B5JSSK national, you'll be able to use their passport and boarding pass. If they're from somewhere else altogether, then it will be like the old system, because you'll be using a passport and visa.  It has become more complex.

Will we only need to use the online portal for right to rent checks on EU nationals or will we still need to do some in-person checks?

Some EU nationals may have physical proof of their status. So those people will be checked traditionally, but the digital system only applies at the moment to people with settled status or biometric residence permits. So if they're EU nationals using settled status, you'll have to check them online and you won't have any physical documents to check them with. If they've got a biometric document, then basically they can choose whether to show you the document or to tell you to go through the online service. More people will slowly move into the online service, but at the moment it's really settled status and biometrics.

Is it right that some citizens could simply use their passport and boarding pass to prove their right to rent when they first arrive and then prove it with a share code thereafter?

Yes. So if they're first coming into the country, they have the same facilities as B5JSSK nationals. They can show you a passport and a boarding pass, and that will tide them over. It's technically a six month right, but it's a 12-month right for your purposes, and in theory during that 12 months, they'll get themselves squared away with a proper system and they will then hopefully send you a share code when they redo their check. And if they've achieved settled status, of course, that then gets them a permanent right to rent and the job's done basically.

Do we need to get a visa or right to rent checks from tenants already in situ?

No, because they already have a permanent right to rent. You can't take away their right. But if you're doing a renewal on a tenant who's in the same property with the same landlord and isn't changing and they've already established a permanent right to rent, they still have a permanent right to rent, never mind whether or not settled status and all the rest of it, but if you're moving them to a different property, then it will have to be redone. And at that point, of course, their settled status will be a factor and their previous permanent right to rent is no good. So, the permanent right to rent is tied to a property. 

What action is taken if a recheck is done and they fail?

If it's a recheck, then you have to report them to the Home Office - there is an online reporting tool. All of these things are linked from the Landlord's Code of Practice, so I would always suggest that you start with the Landlord's Code of Practice - all the details are in there and links to all of the things I've talked about are in there and it's a safe place as well, of course, to find your links rather than Googling them.

When it comes to renewals, should we redo any right to rent checks that we did during Covid-19 virtually?

You're not obliged to check people's right to rent status just because you're renewing their tenancy, you're obliged to check it because they had a time-limited right to rent that's run out. If they had a time-limited right to rent that ran out during Covid-19, you should have done the recheck, albeit online. If you didn't need to do it, you didn't need to do it. 

How do you check the right to rent of people who have pre-settled status?

You have to physically check their pre-settled status and use the online landlord checking service to confirm their pre-settled status. The online landlord checking service is not the same as the digital checking service for the purposes of settled status and biometrics. The  landlord checking service still exists and it covers people who've got their documents with the Home Office for various purposes, like they're applying for a visa or a visa renewal. It covers pre-settled status and people who have got settled status in Jersey or Guernsey or any of the Channel Islands because they issue physical documents. So if you've got settled status as a French national in Jersey, it's not digital. You get a piece of paper  and if you then want to come here, you still have settled status, but you have to show that, and then that has to be checked off and approved through the landlord checking service as well.

If we have a tenant who had a previous permanent right to rent with an EU passport, when the tenancy comes for a renewal, will they need to request a share code to prove settled status?

No, people who have permanent right to rent on a renewal still have their permanent right to rent. If they're moving to a different property, obviously their permanent right to rent goes away and you will then need to prove their settled status.

Can we raise a 12-month tenancy agreement for applicants that can stay in the UK for only six months?

Yes, because time-limited right to rent is for 12 months, or such a period as the document provides. So if I've got a three-year visa, then my time-limited right to rent is three years. If I've got a six-month visa, my right to rent is 12 months. Obviously, renting to someone for 12 months who has a six-month visa is a hazardous exercise, and you may wish to consider that carefully. There is a problem there because the government's discrimination advice does suggest that you shouldn't apply that point of view.

Are new right to rent checks still required for existing tenants where there is a change of occupancy? So if two tenants renting a property, tenant two moves out, but tenant one remains behind and you're drawing up a new contract. Would this be considered a new tenancy and therefore require a new right to rent even though they are in the same property?

Yes, it would always be considered a new tenancy because they're different people.

Can a visitor from the US with a visitor's visa establish the right to rent for a property for 12 months using a passport and a boarding pass?

Yes. If you've entered the UK from the US with an electronic visa, they allow you to stay here for up to six months. So they will allow you to establish a right to rent. And because of the vagaries of the right to rent, they're not being quite the same as a right to enter, that actually gives you a right to rent for up to 12 months - that person technically would be overstaying their visa if they hadn't sorted things out after the first six months, but that's not your problem.

Do all occupiers need to prove their right to rent, even if they're not named as a tenant?

Absolutely. This is a common misconception. Right to rent is everyone who's occupying the property as their home who's over 18. You can't get round it by not sticking people on tenancy agreement, and you need to be alert to this because equally, if the tenant is saying, "Oh, I don't want to put those people on the tenancy agreement," you're obliged to ask why and do the checks anyway, or report them.

What is the possession process if someone has lost their right to rent?

If you're trying to evict a tenant because they've lost right to rent status, as part of your report to the Home Office, you can ask the Home Office to issue you with a "Your tenants don't have a right to rent" document, which allows you to bypass the court process and simply get a High Court enforcement officer to remove them. There's a process for applying for the necessary paperwork for that. If some of the tenants don't have a right to rent, then you can use that form from the Home Office to serve them with a section eight notice citing ground 7B and that's a one-month notice and you can then proceed to evict, or you can use section 21.

If we don't manage the property for the landlord, is it the landlord or letting agent's responsibility to recheck the right to rent status of a tenant with a time-limited visa?

In the first instance, the obligation is on the landlord. The landlord can pass off their obligation to an agent in writing, but there are two levels of obligation. You can pass off the obligation for the initial check and you can pass off the obligation for the recheck, but you don't have to pass off both. So, an agent could say, "I'm not doing any of this. It's entirely down to you." Some agents do. They could say, "I'm going to do the initial check, because I'm doing say a let-only, but the recheck is down to you." Or they could say, "Because they're fully managed, we'll do the initial check and all the rechecks and we'll take the rap for it." But agents can't pass off their responsibility to another agent. So it's either the landlord or the landlord's agent who is doing it.

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