The Right to Rent scheme was introduced in England in 2016 (see our previous article here). It requires private landlords to check the immigration status of all adult occupiers of rented residential property by taking steps such as seeing their passport, residence permits, drivers licence, birth certificates etc.
In a judgment handed down on 1 March 2019 in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department, the High Court has ruled that the statutory provisions under which the scheme was set up are incompatible with the European Convention on Human Rights and consequentially led landlords to discriminate. It further ordered that a roll out of the scheme in Scotland, Wales and Northern Ireland without further evaluation would be in breach of the Equality Act 2010 and will not take place. Judge Martin Spencer said that the scheme caused landlords to discriminate against potential tenants on grounds of nationality and ethnicity. The Home Office has been granted permission to appeal.
Osborne Clarke comment
The Right to Rent scheme was touted as a pivotal immigration control measure, although from the outset it was opposed by many, including the Residential Landlords Association (RLA) who intervened in this significant case. The High Court's decision poses a challenge to its enforceability and it is likely that the government may lodge an appeal to the Court of Appeal. However, until parliament or the courts rule otherwise, the current legislation is unchanged and for the time being landlords and agents in England are required to comply with the scheme and continue to carry out the checks, although it remains to be seen how any breaches will be policed going forward.
The RLA is calling for the scheme to be scrapped and requested a meeting with the Home Secretary to discuss the implications of the ruling. Watch this space.
This article was written by Sue Thompson, Associate Director, with the assistance of Katie Howell, Paralegal, at Osborne Clarke LLP.