Legislation update – Right to Rent and Brexit


When Brexit actually happens, if at all, is still up in the air, with the snap December general election (the third in five years) leaving a number of options on the table – from a clean break Brexit to leaving with Boris Johnson’s deal, a second referendum or no Brexit at all.

Despite this ongoing uncertainty, the government has for a long time been asking businesses and individuals – including letting agents and landlords – to prepare for life outside of the EU.

This has included updated guidance for the controversial Right to Rent policy in a post-Brexit world.

Here, we explore what that guidance said as well as analysing the latest goings-on with Brexit and the December poll.

New Right to Rent guidance provided

Back in in May, the UK government outlined new guidance on Right to Rent checks for EU citizens after Britain leaves the union. It stated that until January 1 2021 EU, EEA and Swiss citizens would continue to be able to prove their Right to Rent in England as they do now – by showing a passport or permitted identity documents either on their own or in combination.

When this guidance was issued, the government – then still led by Theresa May – made a cast-iron promise that this situation would remain the same regardless of whether the UK leaves the EU with or without a deal.

In addition, the guidance made clear that letting agents would not be required to check whether tenants who are EU nationals arrived before or after the UK left the EU, or if they have status under the EU Settlement Scheme or European Temporary Leave to Remain (Euro TLR).

Further to this, letting agents would not be required to retrospectively check the status of EU, EEA or Swiss tenants or their family members who entered into a tenancy agreement before January 1 2021. Irish citizens, meanwhile, would continue to have the right to rent in the UK and prove their right to rent as they do now, for example by using their passport.

Industry guidance

In September, ARLA Propertymark, urged its member agents and the industry to make to be up to speed with how Right to Rent is likely to work on November 1, the day after Britain was due to leave the EU until the recent extra extension.

The industry has now been given some more breathing space with the delay to January 31 2020, but there has been no updated guidance since May 2019 – and nothing from the Boris Johnson-led administration – which means that landlords and letting agents could lack clarity over what exactly their responsibilities are if and when Britain leaves the EU.

ARLA provided useful guidance on how to plan for Right to Rent for November 1 and beyond, which could still prove handy for those operating in the lettings sector, but a fresh update from the government would be welcome in the lead-up to the election. Otherwise letting agents and landlords – who some argue have been acting as de facto border police as a result of Right to Rent – will continue to battle confusion and uncertainty.

With the election campaign now in full swing, the Residential Landlords Association (RLA) recently released its six-point manifesto, with point three being: ‘End Right to Rent – ending the Right to Rent scheme would end the discrimination that has emerged as a result of the stringent checks’.

There have been regular calls for the controversial policy to be scrapped ever since it was rolled out across England from February 1 2016, and the new government will continue to face these calls after the election.

 How did we get to another election?

It’s a question weary voters may well be asking themselves as they are dragged to the polls for a fourth major vote since 2015, but Boris Johnson’s failure to get his Brexit deal through Parliament by his ‘do or die’ Halloween deadline meant he was forced to ask the EU for a further extension to January 31 2020.

He also, in an effort gain a majority and break the Brexit impasse, pushed hard for an election – which, at the third time of asking, he was successful in achieving when Labour (satisfied and reassured that no-deal was effectively off the table for a few more months) agreed to the poll on December 12.

Party members, activists and politicians are all now out on the campaign trail as they try to gain votes in the first pre-Christmas election since 1923. It’s set to be the most unpredictable election in recent times as long-held loyalties are tested, with Labour’s Leave-voting northern heartlands threatened by the Conservatives and the Brexit Party, the Tories facing wipeout in Scotland, and the Lib Dems hoping to build on its recent surge in support with ambitious plans to gain more than a hundred seats.

There has been much talk of tactical voting and Leave or Remain alliances, but there is every chance we could be back to where we are now – with a hung parliament and a deeply divided House of Commons reflecting a country that is effectively split in half on the biggest political issue of our times.

For now, the rules surrounding Right to Rent remain the same, but in a fast-changing political arena this could change fast so landlords and agents need to make sure they are sticking to the regulations when granting new tenancies – even if further guidance from those at the top would be very welcome.

Legislation update – Right to Rent and Brexit