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"Right to rent" checks are a breach of human rights

Posted on 28 March 2019

"Right to rent" checks are a breach of human rights

The "right to rent" scheme, which came into full force in England three years ago, has recently been challenged in the High Court as a breach of human rights.

The scheme requires landlords of residential premises to check the immigration status of prospective tenants (and any other adult who will be living in the premises) to make sure they can legally rent the property.  The purpose of the scheme was to tackle illegal residence, easing the pressure on the housing market and also to penalise and discourage 'rogue' landlords who exploit the situation of illegal immigrants.

What checks does a landlord need to undertake?

In summary, the landlord should ask the tenant for their original document(s) which demonstrate their right to be in the UK. This should involve requesting the tenant's valid passport and/or visa. The landlord should check the name, photograph and any expiry date of the documents, making copies of the documents and recording the date they made the check.  

If the tenant has a time-limited visa, the landlord will need to make checks in the future to ensure the tenant still has the right to be in the UK. If follow-up checks indicate that the person no longer has the right to rent, the landlord should make a report to the Home Office as soon as reasonably practicable. Further guidance can be found here.

Landlords who fail to carry out appropriate checks can be liable for civil or criminal penalties and so landlords obviously need to take this requirement very seriously.

Judicial Review

The scheme has recently been challenged in the High Court by various bodies, including the Joint Council for the Welfare of Immigrants, who argued that it was discriminatory. The JCWI had undertaken research which showed that the scheme was actually encouraging discrimination, making it harder for British citizens from minority ethnic backgrounds and foreign nationals who have a legal right to rent to find homes.

On 1 March 2019 the High Court agreed and declared that the "Right to Rent" scheme was incompatible with European Convention of Human Rights. The effect of this declaration is that the government can amend the legislation underpinning the scheme. However unless and until it does so the Right to Rent scheme remains in force and so landlords will still need to comply. The Home Office has now been granted permission to appeal and so intends to challenge the decision.  So for now despite its apparent discrimination landlords still need to check the immigration status of their tenants.  We will let you know if this changes.

Brexit is only likely to further increase landlords' responsibilities under the scheme in the future, as they may have to take into account European nationals as well as foreign nationals when assessing who has the right to rent.   

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