Right to Rent checks following the March 2019 High Court decision

Landlord solicitor at Holmes & Hills, David Sodimu, discusses the March 2019 High Court decision regarding Right to Rent checks.

On 1st March 2019, the High Court found that the Right to Rent scheme is in breach of Article 14, in conjunction with article 8 of the European Convention of Human Rights (“ECHR”) in the case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin).)The Court also ruled that a decision to commence the scheme in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact, would be irrational and constitute a breach of the Equality Act 2010.

What is the Right to Rent scheme?

The "Right to Rent" scheme, which requires landlords to check the immigration status of tenants and not to provide private accommodation to disqualified persons, was introduced in England in 2016 and was implemented through sections 20-37 of the Immigration Act 2014 (“IA 2014”).

The scheme requires landlords to check that all prospective tenants have a right to live in the UK if they are aged 18 and over whether or not if they are named on the tenancy agreement. The scheme advises that landlords should:

1. Ask for a prospective tenant’s documentation that shows they are entitled to live in the UK
   
2. Perform checks that the documentation is genuine
   
3. Make copies of any documentation
   
4. Make regular checks if the tenants right to live in the UK is temporary; and
   
5. keep records of the checks which are made

If Landlords fall foul of the scheme they could face 5 years imprisonment or receive an unlimited fine for renting any property in England to a person without the right to rent in the UK.

The Issues

In the recent case the Joint Council for the Welfare of Immigrants (“JCWI”) argued that:

1. The scheme engaged article 8 of the ECHR (the right to private and family life) and the disadvantage in the housing market experienced by those discriminated against engaged article 8 of the ECHR;
   
2. The scheme inevitably resulted in discrimination on the grounds of nationality and race and therefore caused discrimination in breach of article 14 of the ECHR (protection from discrimination);
   
3. The government was responsible for any discrimination which was occurring in association with the scheme;
   
4. The scheme was unjustified; and
   
5. Section 20-37 of the IA 2014 should be declared incompatible with the ECHR.

JCWI argued that the scheme put an unjustified burden on landlords and that the potential punishments outlined in the scheme pressured landlords into discriminating against BME (Black and minority ethnicity) prospective tenants, where UK passports could not be provided.

JCWI carried out surveys and had various prospective tenants apply to landlords for tenancies under the alias of both English and non-English sounding names. The results found that there was no discrimination where an applicant with a non-English sounding name could provide a British passport. However, where a passport could not be provided, the study found that landlords were more likely to grant a tenancy to those with English sounding names as opposed to those with non-English sounding names.

The Decision

The Judge found that “…the evidence, when taken together, strongly showed … that landlords are discriminating against potential tenants on grounds of nationality and ethnicity but also that they are doing so because of the Scheme…” and subsequently ordered that sections 20-37 of the IA 2014 were incompatible with Article 14of the ECHR in conjunction with article 8 of the ECHR.

What does this mean for you as a landlord/tenant?

Although this may lead many to surmise that this spells the end for the Right to Rent scheme, this is not the case. The IA 2014 forms part of the primary legislation and the Human Rights Act 1998 does not permit the Court to strike down primary legislation.

The Secretary of State will now have the opportunity to appeal the decision of the High Court and or revoke the statute.

It remains the case, for the time being at least, that the Right to Rent scheme is in force and Landlords are still required to adhere to the scheme. As and when there is news Holmes & Hills Solicitors thinks you should be aware of in relation to Right to Rent checks, we will endeavour to inform you.

Get advice from a Landlord & Tenant Law solicitor:

Call 01376 320456 (Essex) or 01787 275275 (Suffolk) and ask to speak to David Sodimu.