In 2015, as a way of discouraging illegal residence in the UK, the government announced “that from 1 February 2016, all private landlords in England will have to check new tenants have the right to be in the UK before renting out their property.”
Since then, landlords who have failed to comply with their duty to check a tenant’s “Right to Rent”, have exposed themselves to both criminal liability and civil penalties of up to £3,000 per tenant.
Human Rights Act
However, in a judgment last week in the Administrative Court (which forms part of the High Court) the Right to Rent was declared incompatible with Articles 8 and 14 of the Human Rights Act. This is because the introduction of compulsory checks on immigration status, combined with potentially severe criminal liability for non-compliance, encourages landlords and lettings agents to offer tenancies to those who most obviously meet the requirements. In other words, those with a UK Passport are more likely to be offered a tenancy than those with other documents, even if those other documents are proof that the prospective tenant does have a Right to Rent.
The Court held the result is to invite discrimination against those with a less obvious Right to Rent. On this basis the scheme was held to be unlawful.
The Home Secretary has been given permission to appeal against the judgment, but for the time being the Court has made a declaration of incompatibility. It is also of note that the Court was of the opinion that the Right to Rent scheme probably cannot be changed so as to cease to be discriminatory.
What happens now?
Despite the Court’s comments, whilst the case proceeds to appeal, landlords and lettings’ agents should continue to complete the Right to Rent checks. They should also take special care to avoid being accused of discrimination, by carefully considering all Right to Rent documents supplied, and making and retaining contemporaneous notes of the reasons why applicants for tenancies are unsuccessful.
In light of the judgment, the Government has announced that its plans to roll out Right to Rent requirements in Wales and Scotland will be put on hold for the time being.
Case: Joint Council for the Welfare of Immigrants,R (On the Application Of) v Secretary of State for the Home Department (2019) EWHC 452 (Admin)