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Right to rent legal challenge

A challenge to the government’s right to rent measures began yesterday (6 June) when permission was granted to the Joint Council for the Welfare of Immigrants (JCWI), a charity, to proceed with a judicial review challenge. A full hearing will follow.

The basis of the challenge is that the checks cause discrimination on grounds of race and nationality and breach the Human Rights Act and should be reviewed before further roll-out to the rest of the UK. The right to rent requirements were introduced into England in February 2016 under the 2014 Immigration Act, but have yet to be implemented in Scotland, Wales or Northern Ireland.

All private landlords must check that a tenant or lodger can legally rent a residential property in England. The policy also affects commercial landlords if, for example, they let residential flats over retail units.

The checks must be carried out before the start of a tenancy, on all people aged 18 or over who will live at the property as their main home, whether they are named in the tenancy agreement or not. Certain types of property, such as social housing, some student accommodation and leases of seven years or more of any residential property, are exempt. A full list of documents acceptable to demonstrate that a person has a right to rent can be found on the government’s website, but Windrush highlighted instances of people with a legal right to live and work in the UK being denied rental accommodation because they did not have documents which evidenced a right to remain in the UK.

Although a landlord has complete freedom of choice over its tenant, the JCWI’s 2017 report found that 42 per cent of landlords were less willing to rent as a result of the scheme.

A contravention of the right to rent requirements can result in a fine of up to £3000 but if landlords knowingly rent out their property to an illegal immigrant, or have reasonable cause to believe that the tenant has no legal right to remain in the UK, this amounts to a criminal offence which can attract an unlimited fine and up to five years in prison.

A landlord may have a defence where it takes reasonable steps to terminate the tenancy within a reasonable time of becoming aware of the true immigration status of the tenant, but the process of termination and possibly eviction is daunting even though the Immigration Act 2016 introduced provisions making it easier to evict illegal immigrants.

Landlords can pass on responsibility for carrying out (and accordingly, pass on liability for any failure to carry out) right to rent checks as part of the due diligence process on prospective tenants to their letting agents or managing agents. Delegation must be agreed in writing between the landlord and agent, and the agent must be acting in the course of its business, in order to effectively delegate responsibility and liability.

Whether the current legal challenge will be successful remains to be seen, but since the policy’s inception in 2014, and particularly since Windrush, hostility towards it has been growing in certain sectors, with support from a number of representative groups who question the effectiveness of the government’s “hostile environment” policy. What the challenge does suggest is that right to rent checks have led to a reluctance to grapple with a system that can be confusing and costly if you get it wrong.