From 6 April 2022, important changes to both the Right to Work and Right to Rent Schemes will come into effect.
In December 2021, the UK government issued guidance about changes to the way in which Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders evidence their right to work and/or right to rent in the UK.
Both employers and landlords must ensure that right to work checks and/or right to rent checks are conducted properly and in accordance with the requirements set by the UK government, to avoid being liable for a civil penalty.
What are right to work checks?
All employers in the UK have a responsibility to prevent illegal working. Employers must check that all job applicants have lawful immigration status in the UK before entering into employment. There are two types of right to work checks: an online check and a manual check. The type of check an employer is required to conduct will depend on the status of the job applicant.
What are right to rent checks?
All landlords in England have a responsibility to prevent those without lawful immigration status from accessing the private rented sector. Landlords must check that all prospective adult tenants have lawful immigration status in the UK before entering into a tenancy agreement, to make sure the person is not disqualified from renting a property by reason of their immigration status. There are two types of right to work checks: an online check and a manual check. The type of check a landlord is required to conduct will depend on the status of the tenant.
Changes
Previously, both employers and landlords were able to accept or check a physical BRP, BRC or FWP as valid proof of right to work or right to rent, where it showed a later expiry date. However, from 6 April 2022, presentation of a physical document will no longer be acceptable.
Instead, BRP and FWP holders will now need to evidence their right to work or their right to rent using the Home Office online service. An online right to work check and/or right to rent check will be required for all BRC, BRP and FWP holders, as well as individuals who only hold digital proof of their immigration status in the UK.
Retrospective checks
Employers do not need to retrospectively check the status of BRC or BRP holders who were employed up to and including 5 April 2022. Employers will maintain a statutory excuse against any civil penalty if the initial checks were undertaken in line with the guidance that applied at the time the check was made.
For tenancy agreements entered into on or before 5 April 2022, landlords do not need to retrospectively check the status of BRC or BRP holders. Similarly, landlords will maintain a statutory excuse against any civil penalty if the initial checks were undertaken in line with guidance that applied at the time that the check was made.
Guidance
In order for employers to ensure that they have correctly conducted their right to work check, we would recommend:
1. Using the right to work checklist published by the UK government: https://www.gov.uk/government/publications/right-to-work-checklist
2. Using the online interactive tool:
https://www.gov.uk/legal-right-work-uk
3. Reading the updated guidance:
https://www.gov.uk/government/publications/right-to-work-checks-employers-guide
By taking these steps, an employer will be able to confirm that they have undertaken each step correctly to establish a statutory excuse and avoid a civil penalty.
For landlords, we would recommend:
1. Using the guide for tenants and landlords on right to rent checks: https://www.gov.uk/government/publications/right-to-rent-document-checks-a-user-guide
2. Reading the landlords’ codes of practice on right to rent: https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice
3. Reading the updated guidance:
https://www.gov.uk/government/publications/landlords-guide-to-right-to-rent-checks#other-steps
By conducting the right to rent check as set out in the UK government guidance and the code of practice, a landlord will have a statutory excuse against liability for a penalty in the event they are found to have rented to a person who is disqualified by reason of their immigration status.
For further information or to discuss the issues raised by this update, please contact our Immigration Team on 01276 854663 or employment@herrington-carmichael.com or submit a website enquiry.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
