Right to Rent checks after Brexit

Among the many unappealing bits of bureaucracy that fall to the private landlord, one of the least thrilling is carrying out ‘Right to Rent’ checks. Essentially fulfilling the function of an unpaid immigration officer, it means making your tenants prove that they’re legally allowed to rent property in the UK, and shopping them to the authorities if they can’t do this. Penalties for non-compliance are stiff – ranging from £1,000 to five years in jail in the most extreme cases – so it’s one of those things you have to get right.  

If you rent out a property – particularly in a big city – there’s a fair possibility that your tenants might be EU, EEA or Swiss nationals. Currently, these people have an unlimited right to rent property in the UK, just like a UK citizen, so all you need to do is check their passport or ID card and they’re good to go.

However, times are changing, as the UK prepares to leave the EU. It’s still not clear what rights EU citizens will have after Brexit, but it’s pretty much certain they will be more restricted than they are now. So what’s going to change in terms of those obligatory Right to Rent checks?

What’s changing in the immediate future?

Nothing, thankfully. Until 1 January 2021 you can carry on checking up on EU, EEA and Swiss citizens the same way you always have. Of course, we will probably have left the EU before then, but you don’t have to start asking what date your prospective tenants arrived in the UK or what their settlement status is. You also won’t need to apply checks retrospectively, so as long as their paperwork was above board when the tenancy actually started, you’re not going to have to start re-checking it all once 2021 rolls around.

Another thing to note is that this will be unaffected by how Brexit pans out. So whether we end up negotiating a Swiss-style alliance or shouting ‘no deal’ and concreting in the Channel Tunnel, Right to Rent checks will remain the same until January 2021.

What happens in the longer term?

That’s the big question. The plan is for a new, skills-based immigration scheme that will treat all foreign nationals the same, whatever country they come from – with the exception of Irish citizens, who will continue to travel or live in the UK without hindrance.

This scheme was set out in a December 2018 white paper, and contains provisions for people coming here to work or study, along with their families (or the families of UK nationals who are moving back home after time abroad). It also proposes temporary measures to ease the transition, so industries heavily reliant on a migrant workforce don’t find themselves suddenly up the creek.

There will be settled status for those EU nationals already living here long-term, and a sort of semi-settled limbo for those who arrived before Brexit but haven’t yet lived here long enough to be permanent.

The document is nearly 170 pages long, but for all its detail, it’s littered with caveats. One of the most important is right in the introduction, where it states 'The future system will apply in the same way to all nationalities [...] except where there are objective grounds to differentiate. This could, for example, be in the context of a trade agreement [...].'

Which really means that until we know the terms of our departure from the EU, and until we start brokering trade deals with other world nations, we can’t know for sure what schemes might give foreign nationals the right to rent property in the UK. All landlords can really do is to keep abreast of developments and hope that the process of carrying out Right to Rent checks doesn’t become unduly complicated as a result.

The future of Right to Rent checks

Keep your fingers crossed, because Right to Rent checks might have to be abolished or undergo major changes anyway. In March, the High Court ruled that the whole principle of Right to Rent is in breach of human rights laws, since it is almost certainly leading landlords to discriminate unfairly against certain prospective tenants.

Research by the Residential Landlords Association (RLA) found that 44% of landlords were less likely to rent to someone who didn’t have a British passport. Even more worryingly, the Joint Council for the Welfare of Immigrants (JCWI) made a series of undercover tenancy applications that were otherwise identical except for the names. They found that if people had British passports, landlords didn't discriminate on ethnic grounds. In instances where a person didn't have a British passport, however, prospective tenants were less likely to gain a tenancy if they had an ethnic name than if they had a white British one. The court took this as proof that fear of prosecution through the Right to Rent scheme was leading landlords to discriminate based on ethnicity.

Appeals and parliamentary wranglings over this are still to come, but there’s a decent possibility that Right to Rent checks might have had their day – at least in their current form.