In England, all landlords and their letting agents have a legal obligation to prevent people without lawful immigration status from accessing the private rented sector. This responsibility derives from the Immigration Act 2014.

A new draft Code of Practice governing the Right to Rent scheme has been introduced and is set to come into force on 22 January 2024, the same day as the Immigration Act 2014 (Residential Accommodation) (Maximum Penalty) Order 2023. The Code is the sixth edition and will apply to any breaches of the Right to Rent scheme on or after 22 January 2024, and applies to all right to rent checks from this date.

The sixth edition of the Code sets out:

  1. The factors that the Secretary of State will consider in determining who can occupy residential accommodation. Under the code, people fall into two main categories – those with an unlimited right to rent and those with a time-limited right to rent. There are also three further categories being those with no right to rent, those who have been given permission to rent and children.
  2. The factors that the Secretary of State will consider when determining what letting arrangements will fall within the scheme, as right to rent checks only apply to residential tenancy agreements that provide for the payment of rent and allow someone to take up occupation as their only or main home. Among those agreements excluded from the right to rent scheme are social housing, care homes and mobile homes.
  3. The factors that the Secretary of State will consider when deciding who may be liable for a penalty when the scheme is not complied with. Responsibility usually lies with the landlord, but there are circumstances where this can be transferred to an occupier if they sub-let or an agent.
  4. The actions that a new landlord should undertake if they buy a rental property with sitting tenants to conform with the Right to Rent Scheme.
  5. The actions that a landlord must complete to comply with the Right to Rent scheme before commencing a tenancy; either a manual right to rent check, a right to rent check using Identity Document Validation Technology via the services of an Identity Service Provider or a Home Office online right to rent check.
  6. Lists of the documents that are considered acceptable for conducting a manual right to rent check (and consequently establishing a statutory excuse). There is also guidance as to how to check these documents and how to copy them.
  7. Basic steps to conducting a right to rent check using Identity Document Validation Technology.
  8. Guidance as to how to conduct a right to rent check by accessing the Home Office online service, and circumstances in which a landlord will need to contact the Home Office Landlord Checking Service.
  9. How to make a report to the Home Office if follow up checks indicate that an occupier no longer has the right to rent or if an existing occupier is not cooperating with the checks.
  10. The actions that a landlord must complete to establish and maintain a statutory excuse against liability for a civil penalty.
  11. An overview of how the civil penalty is administered. This includes details of what a breach is, how this will be referred, how landlords can present evidence of a statutory excuse, how the Home Office will make a decision, when payment of a civil penalty must be made, how landlords can object and appeal the penalty and when enforcement action can be commenced.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.