On the 1st March, the High Court ruled that Right to Rent breaches the Human Rights Act, essentially because some landlords who are worried about getting things wrong and falling foul of the legislation are rejecting tenants based purely on their nationality and ethnicity.
The legislation came into force in England in 2016 and was introduced to help discourage illegal residence in the country. The process is that landlords and agents have to ask tenants for original documents that prove they are legally able to live and work in the UK. Acceptable documents include a passport, identity card or work visa.
But the Joint Council for the Welfare of Immigrants, concerned about the validity of the process, carried out a ‘mystery shopping’-style exercise. They made a number of identical applications to rent property, but changed key personal details. Where people had UK passports, there was no discrimination based on their ethnicity. But applicants that didn’t have a typical white British name or a UK passport were less successful in being given a tenancy.
The judge, Mr Justice Spencer ruled that the scheme breaches the European Convention on Human Rights because it causes discrimination against ethnic minorities and non-UK nationals who have the legitimate right to be in the country. He said that Right to Rent actually “causes [landlords to discriminate] where otherwise they might not”, because a landlord worried about possible prosecution under the scheme might be tempted to refuse a tenant based on their ethnicity.
He went on to state that the scheme has had little or no effect on controlling immigration and, even where it might have, that benefit was “significantly outweighed by the discriminatory effect". In conclusion, the judge decided that it would therefore be illegal to roll out Right to Rent across the rest of the UK without further evaluation.
Although the Home Office has said it’s disappointed by the ruling, the Residential Landlord’s Association (RLA) sees it as a positive development. Their own research has already revealed that private landlords are indeed less likely to rent to people on temporary visas or with a non-British passport because, with a potential penalty of five years in prison, they don’t want to risk making a mistake.
Even though you can request a Right to Rent check from the Home Office if you’re not familiar with the documentation tenants are presenting you with (details available on the GOV.UK website), the RLA is not happy that the legal responsibility for checking lies with landlords. In their opinion, the policy has turned landlords into "untrained and unwilling border police".
In terms of next steps, the Home Office has been granted the right to appeal and it’s likely that it will, because another independent study found no evidence of systematic discrimination in the policy. Meanwhile, landlords in England must continue to make the checks. But given that an Immigration Bill is already due to come before Parliament to resolve various immigration issues that have been thrown up by Brexit, Right to Rent might be either amended or removed from the statute book altogether under this Bill. We’ll let you know as soon as there are any further updates.