Court Upholds ‘Right To Rent’ Checks Scheme

29 Apr 2020, 43 mins ago

The Home Office has recently won an appeal regarding the lawfulness of the immigration ‘Right to Rent’ scheme that has been in operation in the UK since 2016.

The essence of the scheme is that private landlords are required to check the immigration status of any current and prospective tenants, with a view to denying lodging to those who cannot prove that they have permission to legally rent and live in the UK. Failure to comply by landlords can result in a criminal offence and can attract an unlimited fine or a 5-year prison sentence. The scheme was introduced in line with the UK Government’s “hostile environment policy” which aimed to make it progressively harder for irregular migrants to remain in the UK and therefore prompt them to leave voluntarily. 

In March 2019, the High Court found the requirement for landlords to conduct Right to Rent checks ‘disproportionately discriminatory’ and therefore incompatible with the provisions of the European Convention on Human Rights. The court confirmed that in a number of cases landlords openly expressed a preference for particular tenants who were easily identified as British on the grounds of their ethnic markers, race or passport, unreasonably refusing to enter into contracts with ethnic minorities and foreigners. It has been found that even though less than half of all landlords in the UK behave in this manner, the knock-on effect permeates to many migrants across the country who spend, on average, twice as long as their white British counterparts securing a tenancy.

The Home Office appealed the High Court’s decision, accepting the fact that discrimination was an issue but stating that where it was present, it was as a result of individual landlords preferring particular tenants and not because of the Home Office itself which established the requirement in the first place. The Home Office argued that its implementation of this policy did not incentivise or promote discrimination. The Home Office also claimed that it had gone out of its way to ensure the non-discriminatory nature of the scheme by consulting with relevant bodies prior to its introduction and duly issuing a Code of Practice for landlords.

Interestingly, the recently published and long-awaited Windrush Lessons Learned Review (which you can find further information about in this blog article) contains a whole annex solely devoted to the ‘Right to Rent’ policy. The Review expressed doubts that the scheme achieves fair results, stating that the Home Office had been warned about possible discriminatory consequences of the scheme from the onset. Experts have stated that schemes such as the Right to Rent policy divide communities and target ethnic minorities and vulnerable groups.

However, the Court of Appeal mainly agreed with the Home Office’s line of reasoning. The court acknowledged that in a number of cases the scheme indeed led to landlords discriminating against ethnic minorities and non-British tenants. But it concluded that the scheme was “far from encouraging or incentivising discrimination”. The court inferred that even though “there is, or may be, discrimination on the part of a minority […] of landlords […] the majority of landlords will comply with the Scheme and not discriminate”. 

The court refused to judge whether the scheme itself should be abolished, as “the law itself is not to blame for individual shortcomings” and it is, in any event, for the executive authorities to decide whether the scheme causes any undesired outcome and should be cancelled.

In light of present circumstances and the on-going COVID-19 pandemic, the issues embedded within the Right to Rent policy lead us to question whether the lack of access to safe and appropriate housing for many ethnic minorities and migrants may be an aggravating factor in combating the spread of the coronavirus. Where the UK Government has issued a nationwide ‘lockdown’ urging people to remain at home and where it is more important than ever for people to have suitable accommodation, questions are being raised about the impact on physical and mental health of inequalities within Government policy which prevent many from accessing proper housing.

The Joint Council for the Welfare of Immigrants, an independent charity, has announced that they intend to challenge this Court of Appeal decision and will pursue a further appeal to the Supreme Court.

While the fight over the lawfulness of the Right to Rent scheme goes on, it continues to operate and tenants are still required to provide their landlords with documents in order to prove they are lawfully present and able to rent in the UK.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020


Elena Vaina 

  Elena Vaina

  Paralegal in our Complex Case team