Right to Rent – a risky business for Landlords to assume anything
Brexit may still dominate the news agenda but there is other controversial legislation out there which impacts many landlords across the UK, it is called, ‘Right To Rent’.
On return from your holidays you may have battled with the ePassport gates a little but ultimately it has improved those dreaded queues significantly.
Well, that improvement of ‘flow’ was in mind for many more people, not just EU citizens, when back on 20th May 2019, visitors from Australian, Canada, Japan, New Zealand, Singapore, South Korea and the United States were also able to enter the UK via ePassport gates using biometric passports.
Known as ‘B5JSSK nationals’ they have been automatically granted 6 months’ Leave to Enter as a visitor upon passing through. The scheme was introduced with a view to improving the flow of passengers at busy ports as well as attracting more visitors from these countries.1
Significantly, B5JSSK nationals who use the ePassport gates are granted Leave to Enter without any stamp in their passport or any written confirmation of the date their leave was granted or is due to expire….
The impact on Landlords
Now, for landlords, this has posed significant problems when attempting to conduct right to rent checks on B5JSSK nationals so what DO landlords check to establish a tenant’s right to rent?
The Home Office recently updated its guidance to try and address this issue.
In ‘A short guide on right to rent’, the Home Office advises that landlords can establish a B5JSSK national’s right to rent by checking their passport, together with evidence of the date they last travelled to or entered the UK.
This evidence might be a boarding pass, an airline, rail or boat ticket, a booking confirmation, or ‘any other documentary evidence which establishes the date of arrival in the UK in the last six months.’
The Home Office guidance also confirms that although visitors only have six months’ leave, landlords who have conducted these Right to Rent checks correctly will obtain a statutory excuse against a civil penalty for 12 months from the date of the check.
The Home Office advises that landlords need only conduct a follow up check prior to the end that 12- month period.
The issues for Landlords – a risk worth taking?
The updated guidance leaves plenty of issues unresolved.
One of the most prominent issues for landlords is that the guidance itself ‘has no legal standing’, yet it contradicts the legally-binding Code of Practice.
The Code of Practice lists the documents that can be relied upon in establishing a right to rent, but boarding passes, flight confirmations, or the suggested alternatives are NOT on the list.
Therefore, landlords who accept boarding passes or alternatives are having to rely on non-binding guidance to conduct checks that are unlawful under the current Code of Practice.
The RLA, which represents Residential landlords, argues that the guidance cannot give ‘any legal cover for landlords’ without updating the Code of Practice too.
Meanwhile, the updated guidance assures landlords that the Home Office will NOT pursue a civil penalty against any landlord that has conducted a check on a B5JSSK national correctly.
However, given the harsh penalties in place for landlords who fail to conduct right to rent checks property, it is clear that this is a risk many will not wish to take.
It is worth noting that the updated guidance does mention that the Home Office is seeking to update secondary legislation and the Code of Practice to reflect the changes relating to B5JSSK nationals as soon as possible.
However, given the months of planning that went into expanding the use of ePassport gates and the precarious situation that tenants and landlords now find themselves in, many would argue that ‘as soon as possible’ is not soon enough.