The High Court has held that right to rent checks cause discrimination on grounds of race and nationality and breach the Human Rights Act. In his judgment released today, Mr Justice Martin Spencer said that the scheme could not be justified as “the measures have a disproportionately discriminatory effect”. He concluded that the “nail in the coffin” for the scheme is that, on the evidence, “the scheme has had little or no effect” in tackling illegal residence. Any further roll-out of the scheme would be “irrational … given that … there is little or no evidence of efficacy in relation to the scheme and convincing evidence that [it] causes landlords to behave in a discriminatory way.”
The right to rent requirements were introduced in England in February 2016 under the 2014 Immigration Act, but have not yet been implemented in Scotland, Wales or Northern Ireland.
As we reported last summer, a charity called the Joint Council for the Welfare of Immigrants was granted permission to challenge the right to rent measures before further rollout to the rest of the UK.
Under the right to rent scheme, all private landlords must check the immigration status of a tenant or lodger to ensure they 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. Although a landlord has freedom of choice over its tenant, a fear of falling foul of the scheme was making many landlords less willing to rent to those without a British passport.
Under the right to rent regime, 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 rent checks onto letting agents, but this has to be clearly agreed as part of the landlord’s contract with the agent.
The Home Office has been granted leave to appeal, so how this pans out in practice remains to be seen, but it looks like right to rent is on its way out.