With the Right to Rent scheme rolling out nationwide on 1st February 2016, landlords and letting agents must know when they should conduct immigration checks on their prospective tenants.
However, the latest Home Office guidance does not detail exactly when the checks should be made.
The most recent advice can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/469471/landlords_right_to_rent_guidance.pdf
Right to Rent Checks Must be Conducted Within 28 Days of Tenancy Starting
The lack of timescale for the checks has led to some law firms stating that there is no set period for when the checks must be conducted, only that they should be undertaken before the tenancy begins.
However, the guidance does reference a code of practice that was published in December 2014. Within this, the Home Office explains: “Right rent checks on prospective tenants may only be undertaken and recorded up to 28 days before the tenancy agreement comes into effect.”
Read the code of practice: https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice/code-of-practice-on-illegal-immigrants-and-private-rented-accommodation
With the 28-day period specified, some agents have voiced concerns over any lets that are arranged months in advance, particularly student properties.
A Home Office spokesperson clarifies: “The earlier code of practice is still current. Our more recent document is really just a supplement. It does not go into the level of detail that the code does, but both documents are correct.”1
Landlords and agents should be aware that the code of practice, and therefore the 28-day timeframe, is a legal requirement.
However, the 28-day period is not as straightforward as it seems, as the timeframe expires the day before the tenancy starts.
The law states: “The prescribed period within which the prescribed requirements must be complied with for the purposes of sections 24(4) and 26(4) of the Act is 28 days ending on the day before the day on which the residential tenancy agreement which authorises occupation is entered into.”
The full legislation can be read here: http://www.legislation.gov.uk/uksi/2014/2874/pdfs/uksi_20142874_en.pdf
In practice, the 28-day requirement could mean that tenancies are terminated if they have been set up months in advance. Checks conducted 28 before the eve of the start of the tenancy could reveal that the tenant has no right to rent. This would then leave a void period.
The Association of Letting Agents (ARLA) has insisted that the 28-day rule must be strictly observed.
Rachel Hartley, ARLA’s expert on Right to Rent, explains whether this could pose problems to agents that agree lets in advance: “In a situation like this, we are advising agents to do any reasonable preliminary checks that are possible in advance – sometimes this may be via a video call, noting details of the call – and then set up the tenancy subject to Right to Rent check requirements prior to occupation (within the 28-day period).
“This will help to ensure that the letting can go through trouble-free and the agent can still establish the statutory excuse against civil penalty.”1
If you’re a landlord or letting agent, remember to stick to the law when conducting Right to Rent checks on your tenants.