Right to Rent: Protection or Discrimination

The Right to Rent Scheme (“the scheme”) came into force in England in 2016, we look at it in more detail. Does it discriminate or provide protection?

The scheme’s original intention was to stop those who do not have a right to reside in England from benefiting from rented accommodation and being able to occupy such accommodation when they had no legal right to be in England at all, thus (in theory) encouraging them to leave and free up precious housing resources for those persons entitled to be in England. The scheme puts the onus on landlords and their agents to check the immigration status of the tenants they are letting to.

If a landlord were to let to person or persons who do not have the right to rent, the Government (under the scheme) is allowed to prosecute those landlords and their agents. If Landlords or their agents were found to be in breach of the scheme it could result in a civil penalty of a fine of up to £3000 or a criminal penalty of an unlimited fine and up to five years in prison.

The increased administration required by the scheme and the above headline penalties are worrying for all landlords. Under this scheme, a landlord who wanted to “play it safe” may be tempted to discriminate against potential tenants based on race and nationality in renting properties to those persons more obviously entitled to reside in England than any others because, for example, they are able to produce a UK passport rather than any other document which might have to be cross-checked against the government authorities. In some cases this has happened, which has resulted, in claims of discriminatory by tenants who are being turned away by landlords and agents (through no fault of their own) apparently merely for reasons of race and nationality.

This scheme has now been reviewed in the High Court* following a challenge funded by the Joint Council for the Welfare of Immigrants. This is because the Joint Council had carried out research which suggested that white British people were more likely to be accepted as tenants than people of other nationalities as a result of the scheme.

The Joint Council for the Welfare of Immigrants was given permission to challenge the scheme before it was rolled out to the rest of the UK. Following this challenge, the High Court held that the right to rent checks are not compatible with Articles 8 and 14 European Convention on Human Rights as they are likely to cause discrimination based on grounds of race and nationality. The roll out of the scheme to the rest of the UK, for the moment, has been stopped pending further review by the government.

Practical Tip: Although this case law will create a precedent (for the time being) and thus entitle landlords to disregard the scheme for the time being, it is advisable that landlords, for the moment, continue to comply with the existing legislation. This is because the Home Office has been given permission to appeal which, if successful, would determine that the scheme had always been lawful so that any non-compliance by landlords before then would run the risk of prosecution.

*R (Joint Council for the Welfare of Immigrant) v Secretary of State for the Home Department v Residential Landlords Association, Equality and Human Rights Commission, Liberty [2019] EWHC 452 (Admin), 1 March 2019