References and checks

Legal issues

When carrying out the tasks described in this section, make sure that you comply with your obligations under data protection law. This is because you will need to collect Tenants' personal information.

Also, if your property is in England, Wales or Scotland, you should not attempt to charge your tenants for carrying out these checks. See Fees ban for more information.

References

Before you grant any type of tenancy, you (or your agent) are advised to take at least 2 references for prospective tenants. The references can be from a previous landlord or secured lender, an accountant, an employer, or a bank or a building society.

As well as a general reference, at least one reference should confirm the prospective tenant's financial status and ability to pay the rent. You have the right to ask for bank or building society statements. These will give you an idea of the state of the tenant's bank accounts, and will also be proof of address. You should also ask the tenant for permission to obtain a credit report and for the details that you will need to give to the credit reference agency.

You should check the references carefully (and not necessarily take them at face value – they could be forged or exaggerated). If you have any doubts, you could consider getting in touch with the referees.

You're advised to make detailed checks before giving anyone possession of your property (to reduce the risk of a prospective tenant becoming a problem tenant); if a problem arises during the tenancy you can't harass the tenant or take the law into your own hands, whatever the circumstances.

If a tenant can't afford the deposit

You can check whether any help with the deposit is available to the tenant. For example, in some circumstances:

• employers may have a scheme to lend employees the deposit; or
• local authority housing departments (in England & Wales and Scotland) may have a rent or deposit guarantee scheme, which would guarantee rent or the cost of damage for a specified period.

Entitlement to rent a property in England (the 'right to rent')

For tenancies in England, the Immigration Act 2014 requires a landlord to check that all the adult occupiers of their property (over the age of 18) have a right to be in the UK (even if the landlord uses an agent) before agreeing to a let. This is called the right to rent scheme. Failing to do a right-to-rent check can result in a criminal conviction and/or a fine.

To prove their right to rent, you must do one of the following before entering into a tenancy agreement with a prospective tenant:

• A manual check of a physical document (any nationality)
• Use an IDSP service (British and Irish citizens only)
• Use the Home Office online right to rent check (people without British or Irish citizenship)

You should follow the Code of practice for landlords. Although the code doesn't impose a legal duty on you to follow it, it may be used as evidence by the courts and tribunals when deciding if you are liable.

Manual checks (for any nationality)

Prospective tenants need to show you one or more of the documents from categories known as List A and List B. These are set out in the government guidance Landlord's guide to right to rent checks.

Documents from List A mean that they have a continuous right to rent in the UK. You can check for these documents any time before the tenancy is signed.

Documents from List B mean their right is time limited (requiring a follow-up check at a later date – see below). You must check for these documents no earlier than 28 days before the start of the tenancy agreement.

The process requires you to:

1. Get one or more of the original documents from List A (this will usually be a passport). Check the government guidance for a current list, as the permitted documents for manual checks can change over time.

2. Check the document in the physical presence of the holder to establish the following:

• Does it belong to them? Is the photo, name and date of birth consistent across all documents you have seen? Note that the reasons for any difference in names across documents can be explained by providing further evidence, such as an original marriage certificate, divorce decree absolute or deed poll document.
• Is the document genuine? Are there any signs that it has been tampered with?

3. Photocopy all the pages of the document (unless it's a passport, which requires you to copy the pages that show the date it expires, the holder's nationality, date of birth, signature, biometric details, photo and entitlement to be in the UK). It's recommended that you write something like Date on which this right-to-rent check was made: [insert date] on each copy. The copies must be clear and in a format that cannot be manually altered.

4. Securely keep the copies either electronically or in paper form for the duration of the tenancy and for at least one year after it ends (then securely destroy them).

More information on making manual checks is available in the government guidance Right to rent document checks: a user guide for tenants and landlords.

Using an IDSP service (British and Irish citizens only)

An IDSP provider will use identity document validation technology to get evidence of the prospective tenant's identity, checking that it is valid and belongs to the person who is claiming it. It can be used for British and Irish citizens who have a valid passport (including Irish passport cards).

A list of certified IDSP providers is available on GOV.UK.

Warning: You must not treat the prospective tenant less favourably if they do not hold a valid passport, or don't want you to prove their identity using an IDSP - you must perform a manual check instead.

The usual process when using an IDSP is:

1. You make your request and the IDSP checks the validity of the documents.

2. It then gives you the verification information, giving the results as a range of standards of confidence. The Home Office recommends that landlords only accept checks returning a minimum of Medium Level of Confidence. Do a manual check if it doesn't.

3. You must then:

• Check that the photograph and any biographic details (e.g. date of birth) used and then provided by the IDSP match the person (to check they are not an imposter). You must also be reasonably certain that the IDSP carried out their checks in accordance with the government guidance.
• Keep a clear copy of the IDSP verification for the duration of the tenancy and for 2 years after it ends.

Using the Home Office service (people without British or Irish citizenship)

You can use the online service to check if they have a right to rent, but only if they have one or more of the following:

• a biometric residence permit
• a biometric residence card
• an eVisa (if they used the UK Immigration: ID Check app)

If they don't, you must conduct a manual check (as some people won't have an immigration status that can be checked using the service).

If they do, and if you have received a 'share code' from them, you must not manually check their documents and only use the online service. You won't face any penalties if the individual is later found to not have a right to rent.

Note that you can't demand that they give you a share code. They have the right to ask you to check their documents manually instead. You can't treat them any differently as a result.

The usual process is as follows:

1. The prospective tenant gives you a right to rent share code, which they may be able to get by using one of the government's online services: Prove your right to rent in England or View and prove your immigration status (the code is usually 9 digits).

2. You then enter this code and their date of birth on the online service.

• Check that the photograph matches the individual (this can be done with the person being there in person or via a live video call).
• Keep a copy of the profile page confirming the individual's right to rent - the page that includes the individual's photo and date on which the check was conducted.

If they can't or won't give you a share code, you'll need to carry out a manual check instead. This is the same as the process for described above for UK and Irish citizens, except you may be given documents from List B. You'll also need to check the documents to ensure that any time-limited right to be in the UK hasn't expired.

More information about checking the right to rent online is available in the Landlord's guide to right to rent checks.

Follow-up checks

If you receive a document from List B, you must do a follow-up check before the end of the 12 months after you did the initial check, or before the person's permission to be in the UK expires (whichever is longer).

If they have an outstanding application or appeal in the immigration system, you should perform a check with the Home Office service to verify it.

If the tenant's limited right to rent has expired during the tenancy, you must report it to the Home Office.

Note: You're no longer required by the Home Office to carry out follow-up checks on holders of pre-settled status under the EU Settlement Scheme. A right to rent check on holders of pre-settled and settled status granted under the scheme will only be required before the tenancy starts.

Protection from a civil penalty

Following the above checks should mean you have a statutory excuse and so won't face any penalties if the individual is later found to not have a right to rent.

Consequences of failing to perform a check

As part of the Penalties for illegal renting you could receive a criminal conviction and or a civil penalty (fine) if you allow someone without the right to rent to occupy your property (including allowing a tenant with an expired time-limited right to continue living in your property).

The civil penalty can be £10,000 per occupier for a first breach, and £20,000 for repeated breaches. In the most serious cases, you may get a criminal conviction carrying a prison sentence.

You may have a defence if you have an agent managing your property and:

• They are responsible for carrying out the right to rent checks; but
• failed to do so; and
• you were unaware that the tenants didn't have the right to rent.

But there must be a written agreement with the agency to make clear that they:

• Are responsible for performing the initial check and whether or not they will be responsible for any follow-up checks for those with a time-limited right to rent.
• Must conduct the checks within the correct timescales laid out in the following government guidance: Landlord's guide to right to rent checks and Landlord Code of Practice.

You may also have a defence if you:

• Take reasonable steps to end the tenancy within a reasonable time after discovering that the tenant didn't have the right to rent; or
• Complied with all the checking requirements at the start of the tenancy and then notified the Home Office as soon as the tenant's right to rent expired during the tenancy by reporting it to them.

Discrimination risk

It is unlawful to discriminate against someone based on protected characteristics, such as their race, religion or age, when deciding whether to let your property to them.

Victims of discrimination can claim compensation against you in the civil courts. You should not:

• Discriminate when conducting right-to-rent checks
• Only check the status of those who you think are likely to be migrants
• Treat those with a time-limited right to rent more or less favourably
• Treat those who want you to do a manual check more or less favourably
• Make assumptions about a person's right to rent, or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or length of time they've lived in the UK.

Right to rent issues during the tenancy

If you discover that the tenant doesn't have the right to rent during the tenancy (e.g. if their right has expired), in addition to reporting it to the Home Office, you must take steps to remove them within a reasonable time after discovering this to prevent being guilty of a criminal offence.

You should negotiate with the disqualified tenants to see if they will agree to leave, or serve a section 21 notice to recover possession if the tenancy is an assured shorthold tenancy.

Alternatively, you should consider whether there are any other applicable grounds under the Housing Act 1988 to end the tenancy, including Ground 7B which has been added by the Immigration Act 2016. Ground 7B allows a landlord to terminate an assured tenancy if they have received a notice from the Secretary of State that any of the tenants, or any of the persons occupying the property, don't have a right to rent.

If Ground 7B applies to all the tenants (i.e. all of them do not have a right to rent), you can use the prescribed form, Notice of Eviction and End of Tenancy under s 33D(3) of the Immigration Act 2014, to give the tenants at least 28 days' notice to leave the property. The notice is treated as a notice to quit and ends the tenancy without needing a court order. However, you must not evict the tenants forcibly and should apply to the court for an order for a warrant of possession if they don't leave, so that the court bailiff can carry out the eviction.

The notice doesn't apply if some of the tenants have a right to rent, in which case you can use a notice under section 8 of the Housing Act relying on Ground 7B, and then apply to court for an order for possession.

More information

There are several different government guides landlords are required to refer to when doing a right to rent check (most of which are already referred to above), and it can get confusing.

Some have a specific purpose (such as the Right to rent document checks: a user guide for tenants and landlords, which sets out documents that can no longer be used for manual checks and answers some frequently asked questions), while others contain the same information, but include more detail about other aspects of doing a check.

We recommend that you start by reading the Home Office guidance Right to rent immigration checks: landlords' code of practice and then the Landlord's guide to right to rent checks.