Right to Rent checks – are they discriminatory?

06 Mar 2019

The High Court certainly thinks so and said as much in a robust judgement last week.

The Immigration Act 2014 imposed on private landlords and their agents an obligation not to let residential property to migrants whose presence in the UK is irregular. In particular, landlords must request, obtain, check and copy the identity documents of prospective tenants to verify the latter’s right to reside in this country. The key parts of the Court’s decision are that:

  • the Right to Rent Scheme is “manifestly without reasonable foundation”;
  • it’s disproportionate because it causes landlords to discriminate;
  • it has little or no effect and there’s no reliable system for evaluating it’s efficacy; and
  • under these circumstances it’s irrational to proceed with the extension of the Scheme to Scotland, Wales and Northern Ireland.

The government has been granted leave to appeal. If it does so it’ll be interesting to see further judicial discussion about:

  • the extent to which an irregular migrant may stand outside the law but still exercise rights under the Human Rights Convention;
  • the extent to which the whole purpose of the Immigration Rules might be said to discriminate;
  • the nature and extent of the Claimants’ evidence, in particular the surveys produced as evidence of discrimination and any balancing deterrent effect In the Scheme;
  • the extent of Article 8 rights in the context of a home.

I can see this going all the way to the Supreme Court (possibly also the European Court of Human Rights) and I’m not counting on its survival. In the meantime, prudent landlords will continue making Right to Rent checks taking extra care to ensure it’s their invariable practice and all checks are performed objectively.

We’ll be watching this closely from an employment perspective because the Right to Rent Scheme was closely modelled on the Right to Work checks with which employers are familiar. If the rent checks really are discriminatory there’ll be implications for the work checks and other aspects of the UK’s immigration landscape.

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© James Humphery – Senior Employment Solicitor Salisbury