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Keeping things equal in Residential Tenancies

View profile for Charlotte Payne
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Landlords letting residential property privately need to be aware of the latest changes relating to the right to rent checks that they must carry out on all new tenants and not to discriminate.  Charlotte Payne, trainee solicitor in Warner Goodman’s residential property litigation team has considered these changes which landlords are advised to follow.

All landlords in England have a responsibility to prevent those without lawful immigration status from accessing the private rented sector, by conducting so-called ‘right to rent’ checks. For residential landlords, these identity checks on prospective tenants can be challenging and harsh penalties can be imposed for failing to comply. Landlords may consider avoiding tenants with complex immigration status, in favour of those who hold a British passport, however they may unintentionally find themselves subject to action under anti-discriminatory measures and the Equality Act 2010.

The obligation to conduct right to rent checks was first imposed upon landlords, or their agents, under the Immigration Act 2014, and later updated by the Immigration Act 2016. The checks apply to all prospective adult tenants, over the age of 18, for all new residential tenancies from 1 February 2016, whether via a private landlord, lettings agent or an owner-occupier renting to lodgers. Landlords must obtain and keep copies of valid evidence of the tenant’s right to be in the UK and check that the tenant will live in the property as their only or main home. A person is not permitted to occupy residential accommodation if they do not have permission to be in the UK and do not have an outstanding application with the Home Office.

What changes came into force on 6th April 2022?

Since the initial checks were set out, the requirements have been regularly updated to reflect changes in process and digitalisation of services. More recently, a new set of requirements came into force on 6 April 2022. The most significant update relates to the changes in the way in which the Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) can be used to evidence a holder’s right to rent.

Prior to 6 April 2022, landlords could accept a physical BRP, BRC or FWP as valid proof.  However, these have been removed from the list of acceptable documents used to conduct a manual right to rent check. Prospective tenants are now required to evidence their right to rent using the Home Office online service only. Home Office online checks are also required for individuals who have only digital proof of their immigration status in the UK.

What happens if I accepted a physical BRP as valid evidence, before 6 April 2022?

Retrospective checks will not be required on biometric card holders who, before 6 April 2022, used their physical card as evidence of their right to rent. Landlords will maintain a statutory excuse against liability for a civil penalty if the initial check was undertaken in line with the guidance that applied at the time the check was made.

As a Landlord, how am I at risk of action under anti-discriminatory measures?

The right to rent checks can be extremely complex for some non-UK citizens. A recent House of Commons review of the regulation of private rented housing found 25% of landlords were unwilling to rent to non-British passport holders. Any landlord who attempts to avoid their obligations, by favouring those who are apparently British, could find themselves subject to action under anti-discriminatory measures and the Equality Act 2010.

Race is a protected characteristic under the Equality Act 2010. The definition of race includes colour, nationality, and ethnic or national origins. Landlords who reject tenants with a right to live in the UK, on the above grounds, may face a discrimination claim with an uncapped level of damages. If a Landlord publishes discriminatory advertisements or instructs their agent to discriminate, the Equality and Human Rights Commission can seek action.

How do I avoid a potential discrimination claim?

When faced with challenging checks, where there are harsh penalties for getting it wrong, Landlords may look for tenants whose right to rent status can be more easily ascertained; however this can be seen as an act of discrimination. It is therefore important for Landlords to treat all prospective tenants fairly, making sure their criteria and practices in this regard are appropriate and necessary. Landlords should be consistent when carrying out checks and should be careful not to discourage or exclude tenants, on the grounds of a protected characteristic. It is a good idea to adopt the Government checklist and follow the code that is set out, as it will demonstrate best practice and provide a statutory excuse against liability if you are found to have rented to anyone disqualified by reason of immigration status.

Landlords should specifically be cautious when carrying out right to rent checks for Ukrainian nationals escaping the conflict, as specific rules have recently been introduced.

For further guidance, a ‘Landlord's guide to right to rent checks’ and a guide  to ‘Ukrainian nationals and right to rent checks’ can be found on the Government’s website.

Landlords seeking advice on these matters, require a new assured tenancy agreement to be drawn up or looking to recover possession of rented residential property, should contact Amelia Ford on 023 8071 7429 or by email at ameliaford@warnergoodman.co.uk

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