Briefing for NACCOM projects on “right to rent”
This briefing is for all NACCOM projects including those where rent is paid and hosting schemes. The aim is to ensure that all projects are informed about how the “right to rent” will affect them and encourage them to take necessary steps.
What is the “right to rent”?
The “right to rent” is what the government has chosen to call the law introduced by the 2014 Immigration Act that requires landlords to check the documents of all new “tenants”. It was introduced as a pilot in 5 local authority areas in the West Midlands on December 1st 2014 and has now been rolled out to the whole of England from 1st February 2016. There are no plans at present to extend this to Wales, Scotland or Northern Ireland.
So, from 1st February 2016 anyone making a new offer of accommodation for rent must check that any proposed adult occupants have the “right to rent” and can be fined if they rent to anyone who does not. This covers
- Tenancies and licences
- Lodging arrangements
- Arrangements to provide accommodation in return for work
You can find the government’s own explanation of this and the relevant documents at https://www.gov.uk/check-tenant-right-to-rent-documents
What types of letting are exempted or not included?
Existing lettings (where the tenant, landlord and premises are the same, even if, for example, the rent is changed or a new agreement signed) are not covered.
Arrangements where accommodation is offered free of charge are not included. But people staying free of charge with tenants may be covered if there is a new agreement and the landlord knows they are there.
Holiday lets or other temporary arrangements where what is provided is not the only or main home are not covered, but the Home Office advise (via the Code of Practice which is not legally binding but which are taken into account in any court proceedings or decisions to impost penalties) that the checks should be carried out if the rental lasts for longer than three months.
Many types of letting are exempt.
•“social housing” owned by councils or housing associations where a local council has allocated it via a waiting list, register or similar(but not housing association lettings where the association runs their own allocations scheme)
•housing provided by councils to people because they have a duty towards them as homeless. Councils have to provide accommodation (temporary and maybe longer term) to people they have reason to believe are homeless, eligible (because of immigration status or right to reside) and in priority need (because a child or vulnerable person is in the household). This accommodation may be in hostels, bed and breakfasts, local authority, housing association or private rented housing. But sometimes councils do not accept a homeless duty but simply send people to private landlords: that accommodation is subject to the “right to rent” checks.
•New local authority tenancies granted to people who are existing tenants via transfers, or succession or assignment (when the existing tenant dies or leaves and the tenancy is “inherited” by a family member), or when courts grant a tenancy to an ex-partner as a result of family breakdown
•Accommodation provided by a local authority because of any other duties or powers it may have (mainly this covers social services providing accommodation to people with children or care needs)
•Accommodation provided to asylum seekers or former asylum seekers by the Home Office as part of the asylum support system (this includes S4, S95 or S98 accommodation)
•Care homes, hospitals and hospices
•Hostels (i.e. specific buildings) which provide shared non self-contained accommodationmanaged by a housing association, voluntary organisation or charity, or provided on a non-commercial basis and funded by a public body.
•Refuges which provide accommodation to victims of domestic abuse and are managed by a housing association, voluntary organisation or charity or provided on a non-commercial basis and funded by a public body.
•Mobile homes covered by the Mobile Homes Act 1983
•Tied accommodation (provided by an employer)
•Student halls of residence and student accommodationprovided by a landlord but where the further or higher educational establishment or a charity nominates the student to the accommodation.
•Long leases and fixed term tenancies with no break clauses that last more than seven years. fixed-term tenancies for a period of seven years or more that do not contain a break clause
How do people prove they have a right to rent?
All prospective tenants have to prove they have a “right to rent”, and the Home Office has provided a list of documents landlords can use to provide this. There are different types of “right to rent~ each with their own list of documents that can be accepted as proof. The landlord has to take copies of the documents and keep them in a safe place (this can be done electronically) for at least a year after the tenancy ends. For those with time limited right to rent or “permission to rent” the landlord also has to establish when the checks need to be done again.
A detailed guide for landlords making these checks is available at https://www.gov.uk/government/publications/right-to-rent-document-checks-a-user-guide . It includes pictures of many of the relevant documents.
- Unlimited right to rent or exemption from the scheme
British and EEA citizens are exempt from the scheme, but the landlord will need proof of citizenship. People with indefinite leave to remain or the permanent right to reside have an unlimited right to rent. But, of course, many British citizens may not have passports so the list of documents landlords can ask for to provide an “unlimited statutory excuse” (so they do not need to do repeat checks) is long and complicated. This “List A” is in two parts.
List A Group 1 is a list of single documents including UK and EEA passports, certificates of naturalisation or registration, EEA identity cards and immigration status documents, biometric permits or Home Office letters with photographs confirming that the holder has indefinite leave to remain, no time limit, right of abode or exemption from immigration control.
List A Group 2 is a list of documents which provide acceptable proof if the tenant can produce two of them. Because these are ONLY to prove an unlimited right to rent (and mostly actually of use to British citizens without passports) they are not listed here. Projects that house people with indefinite leave to remain or no time limit (such as the “undocumented” who were resident before 1973) may want to consider how they can use List A group 2 to provide enough documentation for people to move on if they can pay rent but have not yet got their paperwork from the Home Office. An easy way to do this is to provide a letter from a “private rented sector access scheme” for the homeless plus a letter from a British member or retired member of an acceptable profession. The list of acceptable professions is extensive. All details of this including template letters are available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497242/Right_to_Rent_Document_Checks_-_a_User_Guide.pdf
- Time limited right to rent
Most people using NACCOM services will get a time limited right to rent if they sort out their immigration status. People with a time limited right to rent include
•Those with limited leave to remain (such as refugee status, a student visa etc)
•Non EEA citizens who have a right to reside under EEA rules, including those covering the sole carer of a British child or vulnerable adult (a “Zambrano right to reside”) but do not have the permanent right to reside (which provides an unlimited right to rent).
The only documents that can be used to prove this are in List B
•A current passport or other ‘travel document’ endorsed to show that the holder is allowed to stay in the UK for a time-limited period.
•A current biometric ‘residence permit’ card issued by the Home Office to the holder, which indicates that the named person is permitted to stay in the UK for a time limited period.
•A current ‘residence card’ (including an accession residence card or a derivative residence card) issued by the Home Office to a non-EEA national who is either a ‘family member’ of an EEA or Swiss national or has a ‘derivative’ right of residence.
•A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the holder may stay in the UK for a time-limited period.
The landlord will copy these and also use them to establish when the repeat checks need to be done.
- “Permission to rent”
Where someone cannot produce anything from List A or B, the landlord can use the Home Office Landlord Checking Service to verify the “right to rent”. This is meant to cover cases where documents are at the Home Office or have not yet been issued. The Home Office guidance for their enforcement teams says that permission to rent will be issued to
• families with minor children who are within the Family Returns Process
• potential or accepted victims of trafficking or slavery who are noted on the Home Office Case Information Database as having their reasonable grounds accepted for consideration or are within 2 weeks of a conclusive grounds decision
• those with an outstanding out of time initial asylum claim or appeal (those with an in-time application or appeal will have an automatic right to rent says the Home Office guidance but does not give details of how this will be given)
• those on bail (either criminal or immigration bail)
• those in the voluntary departures process (including AVR) who have had an Associated Case added to CID to confirm they qualify for Permission to Rent
This list is not exclusive: we have to assume the Home Office will grant “permission to rent” to other people if the case is made for it.
All the guidance issued so far indicates that the “permission to rent” will be sent to the landlord. There appear to be no arrangements in place for people who could get “permission to rent” to apply for confirmation of it for themselves.
Why are we affected?
Most NACCOM projects do not charge rent since they are for destitute migrants and so are not covered by the “right to rent” checks. BUT
•The Home Office clearly think that much of their policing of the scheme is going to be triggered by other enforcement activity. So if a resident of a project provides an address then it is important that there is proof that no rent is paid
•Some projects provide accommodation for rent as well as free of charge, and these are likely to be “caught” by the “right to rent”
•Some projects rent the accommodation they provide and the landlord may be concerned about possible liability
•Some hosts are tenants and so may be caught by the “right to rent”
•The pilot for the right to rent in the West Midlands uncovered significant discrimination against black and ethnic minority prospective tenants and NACCOM projects may both encounter this but also be in a good position to challenge it
•Moving on is now more difficult for many NACCOM residents who have sorted out their status. They will need to provide appropriate documentation which may not have arrived yet
What about schemes where no rent is charged at all?
Projects that charge no rent at all should have no problem: they are exempt from “right to rent”, but the arrival of the “right to rent” underlines the importance of having written agreements to cover all occupancy arrangements. Projects should review agreements to make sure that they explicitly say that no rent is payable and make sure that residents have copies. Where residents are expected to contribute by way of work, agreements should make it clear that this is an expectation of residents rather than a substitute for rent.
Where projects have contact with local Home Office enforcement teams it may be worth checking with them and ensuring that they know that the accommodation is rent free and so exempt.
PROJECTS WHERE AN ORGANISATION PAYS THE RENT ON BEHALF OF A SPECIFIC OCCUPANT ARE NOT EXEMPT. The landlord will need to have proof of the right to rent for all adult occupants.
How are hosting schemes affected?
Like other projects where no rent is paid, hosting schemes should have no problem with the “right to rent” where accommodation is provided by homeowners, religious orders etc. Like those projects it is important to have documentation making the nature of the arrangement clear and remind the host to keep it in case of any problems.
Where the host is him/herself a tenant things may be a little more complicated if the tenancy is not a council secure tenancy.
•If the tenant is starting a new tenancy and intends to offer a room as a host, the landlord may ask who the room is for, and will need to have proof of the “right to rent” for all adult occupants, including the guest
•If the tenancy is being renewed and the landlord becomes aware that a guest has moved in s/he may regard this as a change in tenancy arrangements and so need documentation for all adult occupants.
So hosting projects may need to review arrangements where hosts are tenants and consider how to deal with this (for example asking the Home Office to provide “permission to rent” documents for people likely to stay with those hosts).
What about schemes offering accommodation in homes with a mix of rent and non rent paying occupants?
Where each occupant has an agreement for a specific room or rooms, then the rent paying tenants will be covered by the “right to rent” and the non rent paying occupants will not. It is vital that all necessary documentation is kept up to date (for example if people move rooms) and readily available to all occupants and to the project.
Where there is no such arrangement (for example where a key worker pays rent and shares the house with other occupants) it is worth projects considering changing the arrangement so that it is easy to distinguish what space is rented and what provided free of charge and to whom.
What about projects who rent the accommodation they provide?
All new residential tenancies in England are covered from 1st February 2016. Generally, when projects rent accommodation for use by destitute migrants they do so as a commercial lease, the rental agreement is between two “commercial” bodies and so this is not covered by the “right to rent”. The project then arranges for the accommodation to be occupied by destitute migrants free of charge, and so this is not covered by the “right to rent” either. It is, however, important that these two arrangements are separate and in writing.
How will our users be affected?
•Users subject to enforcement action may be “accused” of paying rent and evading the checks, which is why it is important to ensure that projects issue users with simple documentation confirming the nature of the arrangement
•Users who want to live with friends or family may find them reluctant to take them in because it may cause problems with the landlord
•Users who sort out their immigration status may find it difficult to move on because they do not have the right documentation. This is similar to the problem people already have, for example, once they get refugee status and have to wait months to be able to claim benefits.
•Users (even when they have the right documentation) may find it difficult to move on because they face discrimination from landlords
What should we be doing?
•Review processes and documentation to make sure they either
- Clarify that people occupy the accommodation rent free or
- Comply with the “right to rent” checks
•Make sure that users understand how the “right to rent” works, the importance of having documentation about their accommodation and of being clear with everyone that it is rent free.
•Consider liaising with the Home Office to get “permission to rent” documentation for people who need it (those in the asylum process, with applications pending, or people who have got status and need to move on but have not yet got their paperwork from the Home Office)
•Consider how the project may respond to allegations of discrimination made by users seeking to move on. NACCOM projects may be in an ideal position to provide evidence of such discrimination because they are able to prepare potential tenants and may also be able to do “situational testing” (where another non-black or ethnic minority person goes to apply for the accommodation after a user has been refused to see if the accommodation is then offered). JCWI is collecting evidence of discrimination arising from the operation of the “right to rent” and may appreciate help with evidence of this sort, or offer guidance on how to collect evidence effectively. Contact Chai Patel .