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“Right to rent” scheme deemed incompatible with human rights

Posted: 27/03/2019

Earlier this month, the High Court found that the controversial “right to rent” scheme was in breach of the European Convention on Human Rights, meaning there is now pressure on the Government to revisit its approach. Here, we outline the background to the case, explain the current implications and consider what happens next.

What is the “right to rent” scheme?

In 2016 the Government introduced the right to rent scheme, requiring landlords to check the immigration status of their tenants. The scheme obliges landlords (or their agents) to request, obtain, check and copy relevant identity documents of prospective tenants to ensure they have the right to remain in the UK before allowing them to rent their property.

The right to rent rules are part of the Immigration Act 2014, which introduced measures to reform the immigration system. It was the Government’s intention that the scheme would deter those illegally resident from remaining in the UK. Under the terms of the Act, a person is disqualified from occupying premises under a residential tenancy agreement if he is not a relevant national and does not have a right to rent.

A person does not have a right to rent if they need leave to enter or remain in the UK and do not have it. Section 22 of the Act prohibits landlords from allowing disqualified adults to occupy their premises under a residential tenancy agreement if the adult is disqualified from doing so as a result of their immigration status.

There are serious consequences if landlords (or their agents) fail to check the immigration status of their tenants. Failing to comply with the scheme is a criminal offence, carrying a maximum penalty of five years' imprisonment or a fine.

In order to assist landlords with the implementation of the scheme, the Government provided supplementary codes of practice. The supplementary codes state that as a matter of good practice landlords and their agents should apply right to rent checks in a fair, justifiable and consistent manner.

Challenge of the scheme

The scheme has recently been challenged in the High Court by way of judicial review by the Joint Council for the Welfare of Immigrants (JCWI). It has argued that the scheme is causing foreign nationals and black and minority ethnic groups of all nationalities to experience nationality and race discrimination.

JCWI asked the court to declare that, pursuant to section 4 of the Human Rights Act 1998, the scheme is incompatible with Articles 8 and 14 of the European Convention on Human Rights (the ECHR). JCWI argued that Articles 8 and 14 of the ECHR were engaged by the scheme, that the scheme causes landlords to behave in a discriminatory way and that it cannot be justified because it is not a proportionate means of achieving a legitimate aim.

The judge agreed in all respects.

It was held that Article 8 of the ECHR was engaged by the scheme on the basis that race discrimination is regarded “with particular anathema and if … the legislation is causing landlords to discriminate on grounds of race then I consider that the ECHR would agree that the bar should be set low in determining whether the scheme comes within the ambit”.

As part of the supporting evidence JCWI and the Residential Landlords Association, the Equality and Human Rights Commission and Liberty (who joined the case as intervenors) had carried out a number of surveys and “mystery shopper” exercises. The judge held that taken together, the evidence strongly showed that not only were landlords discriminating against potential tenants on the grounds of their nationality and ethnicity but that they were doing so because of the scheme. Therefore the judge concluded that it was eminently reasonable to conclude that the scheme could cause landlords to behave in a discriminatory manner.

In respect of government responsibility, the judge took the view that the scheme did not merely provide the occasional opportunity for private landlords to discriminate but actually caused them to do so where otherwise they would not. He felt that the sanctions and penalties landlords potentially faced for contravention of the scheme had caused them to react in an entirely “logical and wholly predictable way”. The Government’s safeguards of online guidance and telephone advice were in his view, “ineffective”.

The judgment concluded that not only was the scheme not compliant with the ECHR, it leads landlords down the path of discrimination and causes them to act in a way which is incompatible with it. On this basis the judge granted a declaration of incompatibility with the ECHR.

The judgment also included a declaration of irrationality as to expanding the scheme beyond England into Scotland, Wales and Northern Ireland.

What happens now?

A declaration of incompatibility has no binding legal effect on the parties. Nor does it remedy the breach of the ECHR. In fact the law remains as it is drafted so, for the time being, landlords (and their agents) must continue to make right to rent checks. The only consequence is to trigger the possible exercise by the Government of the power to take remedial action. However, the statement by the judge that the scheme was effectively not salvageable in terms of ECHR compliance by any remedy means that the whole scheme is never likely to be compliant.

The government has been granted permission to appeal “all aspects of the judgment.” If the Government decides not to appeal the decision, or if the judgment is upheld on appeal, the government will have to amend the right to rent rules to make sure they are compatible with the ECHR.

The Government’s right to rent consultative panel will be meeting in April where they will look at how the scheme operates with the aim of providing further guidance to agents and landlords.

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