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EU Nationals and the Right to Rent

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As London immigration solicitors with a specialist department in landlord and tenant law it isn’t surprising that we have been inundated with questions about compliance with the right to rent legislation.

In this blog, head of the landlord and tenant team, Nollienne Alparaque, looks at the topic of EU nationals and the right to rent. It is a topical subject as many tenants and landlords aren’t sure of right to rent rules and how they apply to EU nationals after Brexit and the closure of the EU Settlement Scheme.

Online and London Based Landlord and Tenant Solicitors

If you need landlord and tenant advice call OTS Solicitors on 0203 959 9123 or contact us online

The right to rent rules

Landlords have a duty to conduct a right to rent check on all prospective tenants, whatever their nationality. The requirement to conduct right to rent checks includes UK citizens and people who are known to a landlord as, for example, a work colleague or acquaintance.

There are questions being asked about EU nationals (and EEA and Swiss citizens) and their right to rent because until the end of the Brexit transition period on the 31 December 2020 all EU nationals had free movement rights. Those rights included the right to live in the UK. Therefore, if a landlord received an application to rent from an EU national all they had to do was see evidence of the EU citizen’s nationality to comply with UK right to rent legislation.

Brexit and the end of free movement changed all that. All EU nationals no longer have a right to rent by virtue of their nationality; things are more nuanced.

EU nationality and right to rent

There are now several categories of EU nationals living and working in the UK:

  • EU nationals with settled status or pre-settled status under the EU Settlement Scheme.
  • EU nationals who are eligible to apply for settled status or pre-settled status because they were living in the UK before the 31 December 2020 but who have not made an application to the EU Settlement Scheme. The deadline for applications was the 30 June 2021. However, the government has said late applications will be allowed if there is a reasonable excuse for the delay.
  • EU nationals who entered the UK after the 31 December 2020 and who are therefore not eligible to apply for pre-settled status. If they don’t have a visa, they do not have the right to rent or the right to work in the UK.
  • EU nationals who entered the UK after the 31 December 2020 and are therefore subject to immigration controls but they do have a time limited visa, such as the skilled worker visa or the intra company transfer visa. As they secured a visa, they have a time limited right to rent, the time being dependant on the length of their visa.

EU national and right to rent changes from the 1 July 2021

From the 1 July 2021, EU, EEA, and Swiss citizens need to prove their right to rent, either using the online Home Office service or through producing the right paperwork . This is more hassle for EU nationals who aren’t used to having to prove their rights (beyond supplying their passport as evidence of their EU nationality for the before 1 July 2021 right to rent checks).Landlords are equally anxious about complying with the law on right to rent checks because of the change in rules.

Landlords are right to be concerned about understanding the latest developments in right to rent because a landlord can face a civil penalty if they either don’t carry out a right to rent check or complete one incorrectly without sight of the right documents.

The new immigration system doesn’t distinguish between non-EEA nationals and EU citizens (unless the EU national is ‘passported’ by having pre-settled status or settled status).The change in the law has meant EU nationals fear that they will be discriminated against when it comes to renting as they worry that it is easier for a landlord to rent to a British citizen or to a prospective tenant with indefinite leave to remain or settled status .

The government  has been at pains to stress that its online right to rent tool is free and simple to use and can be used whatever the nationality of the prospective tenant. In addition, it is against the law to discriminate against a prospective tenant based on nationality. That includes discrimination purely because the landlord doesn’t want the hassle of having to conduct repeat right to rent checks because of the time limited visa status of a tenant.

When can the online right to rent tool be used?

The online right to rent tool can be used if the prospective tenant:

  • Has a valid biometric residence permit (BRP).
  • Has settled or pre-settled status under the EU Settlement Scheme and has an eVisa.
  • Is in the UK on a valid visa (such as a family visa or work visa) and has an eVisa.

To carry out an online right to rent check, a landlord will need the prospective tenant’s full name and date of birth and their share code. Once a landlord has been given the share code it is only valid for thirty days from the date of creation. That means if a prospective tenant only has limited leave to remain in the UK, they will need to give their landlord a new share code when the landlord conducts the repeat right to rent check.

It is important that the landlord or their letting agent carries out the right to rent check either using the online tool or checking physical documents. If, for example, a landlord relies on the tenant  saying that they have checked the online tool this isn’t sufficient as a defence against penalties for not conducting a right to rent check or not carrying it out properly.

Right to rent checks and pending settled status applications

Although the government officially closed the EU Settlement Scheme to new applicants on the 30 June 2021 there are still many EU nationals with pending settled status claims awaiting a decision from the Home Office. In addition, the government is allowing late applications to the EU Settlement Scheme where the applicant can provide a reasonable explanation for their delayed application.

Landlords are therefore receiving applications to rent from tenants who say that they have made an application for pre-settled status or settled status but the application hasn’t been decided by the Home Office. That is entirely possible given some applications take a while for the Home Office to process.

The law says that EU, EEA and Swiss citizens, and their family members, who made an application to the EU Settlement Scheme  on or before the 30 June 2021, and have not yet been granted settled status, can continue to live in the UK and have a right to rent until their application (or any appeal) is determined.

If a prospective tenant made an application for settled status before the 30 June 2021, then a landlord can use the prospective tenant’s settled status certificate of application as proof of their right to rent and get it verified by using the Home Office online tool.

Retrospective right to rent checks on EU nationals

Landlord and tenant solicitors have had enquiries from landlords unsure if they need to carry out new right to rent checks on existing EU national tenants. That is a legitimate concern because if the EU national entered the UK before the 31 December 2020 they may not have applied for settled status . If the tenant entered the UK after the 31 December 2020 the landlord was entitled to rely on the tenant’s evidence of nationality and that is no longer sufficient for the right to rent check.

The guidance says there is no requirement for landlords to carry out a retrospective check on EU nationals, EEA and Swiss citizens who signed a tenancy agreement on or before the 30 June 2021. Any landlord who conducted a right to rent check on an EU national in accordance with the rules at the time has a continuous statutory excuse against liability for a civil penalty.

If a retrospective right to rent check is carried out on a tenant the question is whether the tenant has the right to rent now rather than when they started the tenancy agreement. An EU national would have had the right to rent if they came to the UK before the 31 December 2020 but will have lost the right to rent if they haven’t made an application under the EU Settlement Scheme or made a visa application. If a retrospective right to rent check is carried out and a landlord ascertains that their tenant no longer has a right to rent, they do not need to evict the tenant but instead they must make a Home Office report using the online form so that the landlord retains their right to rent statutory excuse. Likewise, a landlord does not need to evict a tenant because the tenant made a late application for settled status. However, a late applicant for settled status can't apply for a new tenancy agreement as the new landlord would not be able to prove their right to rent.

COVID-19 and right to rent checks

Whatever the nationality of a tenant the COVID-19 related right to rent concessions continue in force until the 31 August 2021. This means landlords can do online video identity checks and accept digital or scanned copies of right to rent paperwork until that date. From the 1 September 2021 landlords and letting agents will need to resume physical document checks in accordance with the right to rent law and guidance.

Online and London Based Landlord and Tenant Solicitors

If you need landlord and tenant advice call OTS Solicitors on 0203 959 9123 or contact us online

Nollienne Alparaque, head of the landlord and tenant department at OTS Solicitors, will be happy to help you with your landlord and tenant legal queries.

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