Q. How has Brexit affected the right to rent scheme?
A. The main change that has arisen following Brexit is with regard to EEA Citizens, as the transitional period of up to and including 30 June 2021 has officially coming to an end and has resulted in the government implementing permanent changes to the scheme.
By way of background, after the announcement of Brexit up to and including 30 June 2021 EEA citizens continued to use their EEA passports as evidence of their right to rent, alternatively they could have opted to use the Home Office Online Checking Service if they had status under the EU Settlement Scheme. In addition to this, there was no requirement on Landlords to conduct retrospective checks on EEA citizens who entered a tenancy agreement up to and including 30 June 2021 and the landlord maintained a statutory excuse against civil penalties if the initial checks were undertaken in line with the guidance that applied at the time the check was made.
The rules changed on 1 July 2021, whereby EEA and Swiss citizens (and their family members) now require immigration status to enter the UK. They cannot rely on an EEA passport or national identity card as before, the reason being is that this only confirmed their nationality and did not prove their right to rent.
From 1 July 2021, the majority of EEA citizens will prove their right to rent using the Home Office online checking service. Those who have made a successful application to the EU Settlement Scheme will have been provided with digital evidence of their immigration status and can only prove their right to rent using the Home Office online checking service ‘prove your right to rent in England’. To prove their right to rent from 1 July 2021, individuals will provide you with a share code and their date of birth which will enable you to check their Home Office immigration status via the online service available on GOV.UK. You will obtain a statutory excuse against liability for a civil penalty if you carry out the check using the Home Office online service as set out in this guidance. If an EEA citizen has been granted ‘Settled Status’ by the Home Office, they will have a continuous right to rent, in the same way as someone with Indefinite Leave to Remain. If an EEA citizen has been granted ‘Pre-Settled Status’ by the Home Office, they will have a time-limited right to rent, and must carry out a follow-up check. The Home Office online service will advise when a follow-up check must be carried out.
Other significant updates since July 2021 include:
- Changes to the way EEA citizens will prove their right to rent in England from 1 July 2021
- Changes to the acceptable document list, to remove the requirement of EEA passports, national identity cards and specified EEA Regulations documents, which only confirmed the individual nationality or that they were exercising EEA Treaty Rights from 1 July 2021
- Changes to the acceptable document list from 1 July 2021 to include: o Irish passport and passport card o A document issued by the Crown Dependencies Jersey, Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service o A frontier worker permit issued under regulation 8 of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020
- The temporary adjusted right to rent checking process during COVID-19.
Overall, it is key for landlords to be aware of the changes in order to comply with their legal obligations to conduct accurate right to rent checks. While the entire scheme itself has not changed, it is imperative that the changes in the details are followed to ensure protection against all forms of penalties.
For more information, please contact Ikram El-Ahmadi.