Madeline Baker
Posted on 13 Aug 2019

Right to Rent: Short Guide does not change Code of Practice

Right to Rent

The Right to Rent scheme was implemented in 2016 and requires private landlords to check the immigration status of their prospective tenants and occupiers. There is an obligation to obtain specific evidence of the individual's status before letting, and to carry out follow up checks where required. Failure to comply can result in penalties and, potentially, prosecution.

The scheme is governed by the Code of Practice issued in 2016 (here).  This is a statutory Code as it has been approved by Parliament. It therefore represents the legal position for landlords. The Code requires that, for non EEA nationals, landlords must see 'clear evidence from the Home Office that the holder has the right, either permanent, or for a time limited period, to reside in the UK.'  This means that the landlord needs to see a passport with a visa in it stating that the person has a right to rent.

2019 Short Guide

This year the Home Office has extended the use of electronic passport gates at UK airports by allowing citizens from the USA, Canada, Australia, New Zealand, Japan, Singapore and South Korea (B5JSSK countries) to enter using electronic ID and an online application.  These travellers will not have a visa in their passport. 

The government has decided that B5JSSK travellers will have the right to rent to rent for up to 6 months, and the Home Office has issued a new short guide on this point (here). The problem with using this short guide is that it is not a statutory document, and the Code itself has not been updated with any further rights for B5JSSK travellers who do not have a visa in their passport.  

The Short Guide states that landlords can rent to a B5JSSK passenger who is clearly in the UK for a holiday, or based on evidence that they entered the UK in the last 6 months. This can be a travel document such as a boarding pass. However, a boarding pass or similar does not meet the test set out in the Code of Practice (quoted above), and the statutory Code does not contain any special rights for B5JSSK travellers.

Conclusion

Therefore until the Code of Practice is revised, it does not offer any legal cover for landlords should a B5JSSK tenant stay longer than 6 months, or should they let their property without seeing the correct evidence.  The 2016 Code of Practice remains the definitive guidance for landlords letting to overseas tenants, regardless of the newly-issued Short Guide.