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Right to Rent declared unlawful

The Immigration Act 2014 introduced in February 2016 in England, made a requirement that a landlord must check the immigration status of their tenants to ensure that they had a ‘right to rent’ residential property in England.

This meant that landlords needed documentary evidence of the right of the potential tenant (and all occupiers) to reside in England and if not were required to do a Home Office right to rent check.

The implications of failing to carry out the appropriate checks were severe and punishable by up to 5 years imprisonment and an unlimited fine, as well as a banning order with black listing on the Database of Rogue landlords.

The Judicial Review brought by the Joint Council for the Welfare of Immigrants

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 Rights which provides that everyone has the right to respect for one’s “private and family life, his home and his correspondence”.

They 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 landlord 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).

It was declared by Mr Justice Martin Spencer in the High Court this month 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 potential tenants on the basis of nationality and ethnicity.

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.”

This means that it would be ‘irrational’ to extend the scheme to the rest of the UK.

What will happen next?

The Home Office has actually been granted permission to appeal this decision, which is likely to take some time, so it is unclear whether in the meantime, there will be legislative or parliamentary clarification and guidance.