Following the UK’s departure from the EU, a grace period of six months began on 1 January 2021, during which time relevant aspects of free movement law were retained to allow eligible EEA and Swiss (“EEA”) citizens and their family members resident in the UK by 31 December 2020 to apply to the EU Settlement Scheme (“EUSS”). This grace period ends on 30 June 2021, which is also the deadline for applications under the EUSS (although limited provisions for late applications apply).

What’s changing?

From 1 July 2021, EEA citizens and their family members require immigration status in the UK, in the same way as other foreign nationals. They can no longer rely on an EEA passport or national ID card to prove their right to rent property in the UK. 

All landlords in the UK will need to be made aware of the changes to the documents they can accept when they undertake a right to rent check for new tenancies starting from 1 July 2021. The List A and B documents accepted as a valid right to rent check will no longer feature EU, EEA or Swiss passports or national ID cards.  

This change does not affect Irish nationals, who can continue to rely on their passports to show their right to rent in the UK.

Most EEA citizens resident in the UK will have applied to the EU Settlement Scheme by 30 June 2021 and will have digital evidence of their UK immigration status. They will be able to evidence their right to rent by sharing their immigration status digitally, using the Home Office online ‘right to rent service’ on GOV.UK. 

There will be some EEA citizens who have another form of leave in the UK, held in a physical document, for example an endorsement in a passport, visa or vignette. These documents are included in the prescribed List A and B document list.

What about existing tenants?

The new code of practice applies to initial right to rent checks conducted only on or after 1 July 2021, and repeat checks required on or after this date. The Home Office is clear that retrospective checks on existing EU, EEA or Swiss tenants by 30 June 2021 (and so where an ‘unlimited’ right to rent has been established’) will not be required.  In addition, where a tenancy starts on our after 1 July 2021 but a landlord conducts a right to rent check before this date, an EEA/Swiss passport or ID card can still be relied on.

Online Checks

Following the introduction of ‘The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2020’, landlords can conduct a Home Office online right to rent check to establish a statutory excuse against a civil penalty, where eligible. 

Landlords can conduct an online check by accessing the Home Office online service ‘View a tenant’s right to rent in England’ on GOV.UK. The online service allows checks to be carried out by video call, and landlords do not need to see physical List A/B documents as the right to rent information is provided in real-time, directly from Home Office systems.

Not all prospective tenants will have evidence of their immigration status that can be checked online. Currently, the Home Office online checking service only supports checks for those who hold:

• a current biometric residence permit;
• a current biometric residence card;
• status issued digitally under the EUSS;
• status issued digitally under the points-based immigration system; and
• eVisa holders (currently only EEA nationals with permission to stay under the Skilled Worker or Intra-Company routes).

In line with the Government’s ‘New Immigration Plan’ to move towards fully digital immigration status by 2024, there will therefore be some individuals who will have been issued their immigration status digitally and so will have no physical document evidencing their right to rent. They will only be able to use the online service to prove their right to rent and landlords must not discriminate against those who can only prove their right to rent digitally using the Home Office online service.

Nationals of the EEA, Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA who are visitors to the UK

Nationals of the EEA, Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA, who enter the UK as a visitor are able to use e-gates at UK airports, seaports and Brussels and Paris Eurostar terminals.

Those entering the UK as a visitor or business visitor using the e-gates will be granted automatic leave to enter for a maximum period of up to six months and so will not have a document to evidence their lawful status in the UK. Nationals of the EEA, Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA who are visitors are therefore permitted to use a combination of their passport, plus evidence of entry to the UK to demonstrate a right to rent for up to 6 months.

The new draft code of practice on right to checks due to come into force on 1 July 2021 can be viewed here.

For further information on right to rent checks please contact Paul McCarthy, Senior Associate in the Immigration team.