Commentary on Sections Part 3: Access to Services etc Schedule 3: Excluded residential tenancy agreements Section 21: Persons disqualified by immigration status or with limited right to rent
125.This section sets out those persons who may not occupy privately rented property as their only or main home as a result of their immigration status; these are “disqualified persons.” It also sets out those persons who have a “limited right to rent property” because of their immigration status. In general, those who entered the UK unlawfully, or have overstayed their leave to enter or remain in the UK, will be disqualified and those persons who have a limited right to enter or remain in the UK have a limited right to rent.
126.Subsection (1) sets out those persons who are disqualified from occupying property. It makes it clear that relevant nationals, namely British citizens, EEA nationals and Swiss nationals, have the right to rent property, as they are all relevant nationals as defined in subsection (5). A person is disqualified from occupying property under a residential tenancy agreement (they do not have a “right to rent”) if they are a person who needs leave to enter or remain to be lawfully in the UK but does not have leave (subsection (2)) or their leave is subject to a condition that would prevent them from taking up occupation at the premises. A person whose leave to enter or remain in the UK is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise) will not have leave to enter or remain in the UK and so will not have a right to rent. A person who has leave subject to a condition that they reside at a specific address, which is not the address of the premises which are the subject of the agreement, will not have a right to rent that property.
127.Subsection (3) gives the Secretary of State the discretion to grant a person the right to rent even though they would otherwise be disqualified as a result of their immigration status.
128.Subsection (4) defines the persons who have a “limited right to rent”. These are persons who have been granted leave to enter or remain in the UK for a limited period of time, those persons who do not require leave to enter or remain as the qualifying family members of EEA nationals, or persons who enjoy a right to reside in the UK which derives from the EU Treaties.