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‘Right to rent’ tenant checks deemed lawful

A recent judicial review challenged the decision of the Immigration Act 2014, which forced landlords to prove the immigration status of any potential tenants to ensure they were legally allowed to rent property.

What is the Right to Rent?

Introduced in February 2016, the Immigration Act 2014 made it a mandatory requirement for landlords to gather documentary evidence of the right of the potential tenant (and all occupiers) to reside in England, and potentially trigger a right to rent check via the Home Office.

The details of what landlords are required to do are contained in the Code of Practice1. Implications for failing to carry out the appropriate checks were severe and punishable by up to five years imprisonment and an unlimited fine, as well as a banning order with black listing on the Database of Rogue landlords.

Are right to rent checks discriminatory?

In summer 2018, the Joint Council for the Welfare of Immigrants (JCWI), a charity which represented immigrants and other ethnic minority groups in the UK, launched a judicial review challenge against this statutory provision.

They relied on Article 8 of the European Convention on Human Rights2, which provides that everyone has the right to respect for “private and family life, his home and his correspondence”.

The JCWI argued that the 2014 Act was effectively causing private landlords to discriminate against non-British people (which also contravenes Article 14 of the European Convention on Human Rights).

They claimed that 42% of landlords were less willing to rent to anyone without a British passport as result of the new legislation (with 25% of landlords refusing to rent without a British passport)6.

Mr Justice Martin Spencer declared it in the High Court in March 2019 that the 2014 Act was indeed incompatible with Articles 8 and 14 in that landlords (to avoid the sanctions imposed by the 2014 Act) were discriminating against potential tenants on the basis of nationality and ethnicity7.

He was critical of the government and their failure to justify the legislative change; “…the Defendant has failed to justify the Scheme, indeed it has not come close to doing so…But the nail in the coffin of justification is that, on the evidence I have seen, the Scheme has had little or no effect and…the Defendant has put in place no reliable system for evaluating the efficacy of the Scheme.”

Appealing the decision

The Secretary of State for the Home Department (SSHD) were granted permission to appeal. This was heard by the Court of Appeal in January 2020 (Secretary of State for the Home Department v R (Joint Council for the Welfare of Immigrants) with the decision being issued on 21st April 20203.

The Court of Appeal deemed the Right to Rent Scheme lawful. Whilst it accepted that the application of the scheme could indeed lead to discrimination (of potential tenants who do not have British passports), such discrimination was capable of being justified in the public interest of preventing irregular immigration. This was a proportionate mean of achieving a legitimate aim and the discrimination itself was not a rational or logical result of the application of the Scheme. The evidence8 they cited in support showed that than less than half of landlords discriminated in the manner suggested.

What Next?

This is not the end of the story, as JCWI has sought permission to appeal to the Supreme Court4. But who knows when a decision will be reached in the current climate?

Landlords are strongly advised to comply in the meantime with government guidance.

Right to Rent during COVID-19

Specific coronavirus advice5 from the government confirms that:

Right to rent checks have been temporarily adjusted due to coronavirus (COVID-19), to make it easier for landlords to carry them out.

As of 30 March 2020, the following temporary changes have been made:

  • checks can now be carried out over video calls
  • tenants can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
  • landlords should use the Landlord’s Checking Service if a prospective or existing tenant cannot provide any of the existing documents

Landlords will be informed ¬– in advance – once the above measures come to an end, and will then be required to conduct new and retrospective checks in the normal way.