Check-mate for the “right to rent” check?

4 March 2019

In this article, Mike Ellis and Alexandra Sollohub discuss the High Court's recent decision in R (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department (Residential Landlords Association and others intervening). 

On Friday 1 March 2019 the High Court delivered a damning judgment in which it declared that the requirement on landlords to check the immigration status of potential tenants in England (known as the "right to rent" scheme) was incompatible with Articles 8 (right to a home and family life) and Article 14 (right against discrimination) of the European Convention on Human Rights.

The "right to rent" check was a new scheme introduced by the government in 2014 which came into force in February 2016.  It required landlords of properties (in England) to carry out checks on the immigration status of potential tenants.  The purpose of the scheme was to ensure that tenants who had no right to remain in England were unable to rent property.

Under current legislation, UK Nationals, EEA and Swiss nationals all have an unlimited right to rent. The right to rent of other nationals depends on whether they have leave to remain in the UK (whether permanently or on a time-limited basis).

A landlord must request, obtain, check and copy relevant identity documents before letting a property. Landlords who authorise those without the right to rent, known as "disqualified persons", to rent or occupy accommodation, knowing or having reasonable cause to believe that they are disqualified, are liable to be fined and/or imprisoned.  A landlord would have a defence to this if they could prove that they undertook the prescribed checks and, where necessary, informed the Home Office of the disqualified person's occupation of the premises.  Where a landlord is made aware that an occupier does not have the right to rent, or no longer has the right to rent, the landlord is required to take reasonable steps, which may include taking steps to repossess the property.

However, the scheme has been heavily criticised from the outset on several grounds: (a) it imposed an unnecessarily heavy duty and burden on private landlords (b) it was potentially discriminatory (because it encouraged landlords not to let to foreign nationals, even if they did have the right to rent property in England), (c) there was consensus that it was unfair to cause landlords to act as immigration gatekeepers (when this is the job of government bodies), (d) the fines and penalties were disproportionate, and (e) there has in any event been little evidence that the scheme has prevented tenants who have no right to stay in England from finding accommodation.

The claimant charity, the Joint Council for the Welfare of Immigrants, applied for a judicial review of the scheme, claiming that some landlords commit race or nationality discrimination against applicants who are not (white) British citizens, even if they have the right to stay.

The Residential Landlords Association, the Equality and Human Rights Commission, and Liberty, were given leave to intervene, i.e. to provide evidence and submit arguments.

The law

Article 8 ECHR states as follows:

  1. Everyone has the right to "respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the provision of the rights and freedoms of others.

Article 14 ECHR states as follows:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

The court's findings

The court declared that there were breaches of Articles 8 and 14 of the EHCR.

Whilst it is recognised Article 8 does not entitle someone to be provided with housing, nevertheless Article 8 still applied because it gives everyone the right to seek a home for themselves or their family, and that where someone seeks to obtain a home, and there is government policy that interferes with this, there should be a level playing field.  The court found that the government's policy interfered with this right because, plainly, it was discriminatory, and treated tenants who were white British citizens more favourably than those citizens who were black or of a minority ethnicity. 

On the issue of discrimination under Article 14, the court considered a range of evidence presented by the claimant.  This included the results of two mystery shopper exercises which were designed to show whether nationality and/or race was a factor in the decision of whether a landlord wanted to let its property, as well as the claimant's independent evaluation of the government's scheme.  The court found that, taking all of the available evidence into consideration, landlords were discriminating against tenants on the grounds of race and nationality and furthermore that the scheme was actually causing landlords to be discriminatory. The sanctions and penalties that landlords faced for letting a property to tenants without the right to rent were causing landlords to prefer renting to UK nationals.

The government had issued online guidance, set up a telephone helpline service and published codes of conduct and practice, in order to help landlords avoid discrimination.  However, the court found these measures to be ineffective which could not be used by the government to "wash its hands of responsibility" for the discrimination.

Why is this important?

Declarations of incompatibility are extremely rare.    However, this decision does not change the law requiring landlords to continue checking the immigration status of tenants (and, for the time being, landlords who fail to do so will remain liable to pay a fine if there is a breach of the rules).  It is unclear whether the government intends to appeal this decision.  If it does not, Parliament will need to intervene either to amend this law, or repeal it completely.

Case reference: R (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department (Residential Landlords Association and others intervening)[2019] EWHC 452 (Admin)

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