Renting Property to Tenants in the UK on Visas
A guide for landlords on right to rent checks if prospective tenants are from overseas and for tenants if you are in the UK on a visa and need to rent accommodation from a private landlord
Renting is difficult enough – that is the case whether you are a landlord trying to cover the mortgage and essential repairs and make a bit of profit or a tenant desperate to find a property that does not involve a change of school for your children because of an impossible journey to school across London.
As immigration solicitors who also specialise in landlord and tenant law, it is not surprising that our housing lawyers also get asked questions about right to rent and discrimination. When there are so many prospective tenants going for every property, it is understandable that some tenants question why they are the ones who always seem to be rejected.
In this article, our landlord and tenant solicitors look at the law and rules on the conduct of right-to-rent checks from the perspective of the landlord and the tenant.
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For landlord and tenant legal advice call the experts at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
The basics on right to rent checks
Although a prospective tenant can feel targeted when asked to complete a right-to-rent check, the law says that all private landlords must conduct right-to-rent checks on all tenants. They are a pain for both landlords who do not want the hassle and for tenants who consider the checks intrusive or wonder whether the landlord is questioning their honesty about their immigration status or their right to live and work in the UK.
As right-to-rent checks are almost universally disliked by landlords and tenants, it is not surprising that our landlord and tenant solicitors are asked questions about the checks by landlords, letting agents, and tenants. Landlords often fear getting the right to rent check wrong and facing penalties or being accused of discrimination if a prospective tenant’s right to rent check is not straightforward. Likewise, tenants find these checks frustrating and sometimes insulting.
The best way to think of these checks is that they are part of UK immigration control but instead of being carried out by a Home Office official, police officer, or border official, the job is delegated to the private landlord who is normally the very reluctant agent of the government. Most landlords complain that there is no benefit to them in completing the check as their credit checks or reference checks are the ones that are important to them as they indicate whether the tenant is likely to be able to afford to pay the rent or likely to meet all their obligations under the tenancy agreement. Likewise, tenants cannot see much point in them other than as an unwelcome administrative burden when they are already stressed out enough by having to find somewhere to rent when there are insufficient rental properties available.
Discrimination and the right to rent checks
The courts have held that the right to rent check is legal. Under the law, they must be carried out. However, a landlord or a letting agent can be found to have conducted the check in a discriminatory manner. That means a prospective tenant was treated unfairly because of a characteristic that is particular to them.
Equality law protects against discrimination if a tenant has what is termed a 'protected characteristic'. These characteristics include race, ethnicity, nationality, or colour. Therefore, any tenant who is not a British citizen will have a protected characteristic by virtue of their nationality. Likewise, taking matters to extremes, if a German landlord was only prepared to let their London-based properties to tenants who were originally from Germany, a prospective tenant with British citizenship or non-German citizenship would have a protected characteristic as they would be facing discrimination based on their nationality.
A tenant may have several other protected characteristics as the law also protects against discrimination based on:
- Religion or beliefs
- Age
- Sex or sexual orientation
- Disability
- Gender reassignment
- Pregnancy or maternity
It can be hard to work out if the rejection of a tenant amounts to discrimination or not. For example, a landlord may not want to rent out a new property to a pensioner or a woman on maternity leave because of their limited financial means rather than because they have a protected characteristic.
Alternatively, a landlord may be looking to rent a property on a long-term basis and be wary of renting to a person whose right to rent is only valid for 6 months because their visa will expire in 6 months. Although the landlord may be filtering tenants for what they believe to be commercial reasons their actions could be discriminatory as they are excluding any tenant with limited leave to remain from renting the property. Of course, there are no guarantees that a British citizen tenant would stay beyond 6 months whilst the tenant with limited leave to remain on their visa might be applying to extend their visa or applying for indefinite leave to remain. A landlord should not make assumptions that a person with limited leave to remain will not be a steady long-term tenant. The Home Office guidance states that a landlord should not treat a tenant less or more favourably if they have limited leave to remain or due to their immigration status.
Passing the right to rent check
Landlords need to carry out the right-to-rent check before the tenancy agreement starts. Frustratingly, for some tenants, the right to rent check may need to be renewed if the tenant has limited leave to remain in the UK. That is because the landlord is under a continuing legal obligation to ensure that their tenant has an ongoing right to rent.
A tenant who has limited leave to remain may find it harder to pass a manual document check or a digital check depending on their immigration status. There are 3 types of right-to-rent checks; the manual document check, using the services of a certified Identity Service Provider (IDSP), or the Home Office online check. Passing any of these checks is sufficient to provide a landlord with a statutory excuse against liability for a civil penalty if it is later discovered that the tenant did not have the right to rent.
The Home Office guidance says that a landlord should not discriminate against a prospective tenant because they can only participate in 1 type of right-to-rent check. The example is given that it is not appropriate to give priority to a person with an E-visa who can digitally prove their right to rent rather than someone who needs to provide physical documents or use an IDSP.
Our landlord and tenant solicitors say that the Home Office guidance gives lots of constructive tips on how to carry out right-to-rent checks and highlights where actions may either be directly or indirectly discriminatory.
How OTS Solicitors can help you
At OTS Solicitors our landlord and tenant lawyers can help you with:
- Landlord and tenant disputes
- Tenancy agreement advice so you understand your tenant or landlord's obligations
- Advice on fixed-term and rolling tenancies
- Section 21 notices and possession proceedings
Online and London Landlord and Tenant Solicitors
For landlord and tenant legal advice call the experts at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
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