With the stated intention of being tougher on rogue landlords, the government has increased the maximum civil penalties for a breach of the “Right to Rent” regime in England.

In this article we look at what the Right to Rent Scheme is, what the consequences are for non-compliance and what changes have just been made.

What is the Right to Rent Scheme?

The Right to Rent Scheme was created by the Immigration Act 2014 as part of a package of measures designed to control and deter illegal immigration.

Subject to some exclusions, it applies to all residential tenancy agreements entered into on or after 1 February 2016 in England.

At its heart, the Scheme aims to prevent people unlawfully living in the UK from accessing key services, including the private rented sector.

It does this by requiring landlords and letting agents in England to carry out checks on new adult occupiers before renting to them, and prohibiting them from renting to those who are disqualified as a result of their immigration status.

Landlords and lettings agents can use a Home Office online right to rent checking tool, identity document validation technology or carry out a manual check of original documents to check the immigration status of prospective tenants, and other occupiers, to confirm whether those individuals have the right to be in the UK.

The scheme provides that prospective tenants will either have an unlimited right to rent, a time-limited right to rent or no right to rent at all.

Where the landlord carries out the relevant checks before the start of the tenancy and the prospective tenant is shown to have an unlimited right to rent (for example, because they are a British citizen), they do not need to conduct any further check.

If, however, the landlord carries out a right to rent check that reveals that the individual currently has valid permission to be in the UK but only for a limited period of time, it must conduct a follow-up check shortly before the tenant’s permission expires.

If a follow-up check shows that an occupier no longer has the right to rent, or an occupier does not cooperate with the process, the landlord must report this to the Home Office.

Civil and criminal consequences of failing to comply.

If a landlord or letting agent contravenes the right to rent requirements, they could be issued with a civil penalty notice by the Home Office.

In addition, a landlord (or their agent) will commit a criminal offence if they know or have reasonable cause to believe that the premises they are renting out are occupied by an adult who is disqualified from occupying due to their immigration status. This is punishable by an unlimited fine, imprisonment or both. The landlord may have a defence, though, if they can prove that they have taken reasonable steps to terminate the tenancy within a reasonable period of time.

What has changed?

Regulations came into force on 13 February 2024 that significantly increase the civil penalties for failing to comply with the Right to Rent Scheme.

The maximum fine that a landlord or agent could face for renting to a disqualified person has increased from £1,000 to £10,000 for a first breach, and from £3,000 to £20,000 for a repeat breach.

A penalty notice can be issued in respect of each adult who is disqualified from the right to rent as a result of their immigration status.

There is a faster payment option available to landlords issued with their first penalty notice giving them the opportunity to pay a 30% lower amount if they pay in full within 21 days.

The statutory Code of Practice that accompanies the Right to Rent Scheme has also been updated to reflect the increase to the civil penalties, and to simplify the guidance on how the penalty system is administered.

WolfBite

The amount of red tape that private landlords have to go through to rent out residential premises seems to increase every year. So too do the costs, risks and penalties for getting things wrong. The increase in civil penalties for failing to enforce this part of the government’s immigration policy is yet another example.

However, if landlords and agents are not carrying out right to rent checks it is either because they don't know what they are meant to do (which is not an excuse) or else they are deliberately flouting the law. In either case, it is difficult to see that increasing the civil penalties will have any significant impact.

If the intention is to deter rogue landlords from renting to disqualified people, one might also ask why greater use is not being made of the criminal sanctions that already exist.

Why the government has chosen now to increase the civil penalties is unclear. One might speculate that messaging around illegal immigration in the run up to an election may play a part.

Whatever the reason, these changes provide a useful opportunity to remind residential landlords and letting agents of the need to carry out right to rent checks properly and on time.