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How Right to Rent immigration checks could be derailed in the courts
As the government’s controversial Right to Rent policy is set to be challenged in the High Court, Derek Bernardi explains the potential ramifications
Most readers are probably already familiar with the Right to Rent scheme, introduced nationally in England by the Immigration Act 2016.
For those who are not, it may be summarised as followed – private landlords and housing associations can only rent to tenants who have the right to rent.
A person will not have the right to rent if they require, but do not have, leave to enter or remain in the UK.
If a landlord rents to a person without the right to rent, or fails to take reasonable steps to evict such a person after being served with a Notice of Letting to a Disqualified Person by the Home Office, he or she may be subject to an unlimited fine and/or up to five years imprisonment.
“It is clear that the scheme can potentially cause enormous problems in practice for both landlords and tenants.”
Prospective tenants without the right to rent on the other hand will obviously be unable to lawfully rent virtually any property in England.
But beyond that, they will also by definition be ineligible for homelessness assistance. It follows that any such person will be subjected to homelessness for as long as they remain in England, unless they are able to rent a property from an unscrupulous landlord.
Regardless of what one thinks of the policy behind the scheme, it is clear that it can potentially cause enormous problems in practice for both landlords and tenants.
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In my role as housing supervisor at Camden Community Law Centre, I have taken on one such client, whose case illustrates the potential difficulties.
She was wrongly found not to have the right to rent after, having come to the UK lawfully, the Home Office lost her original passport from her home country.
Despite having leave to remain under the Immigration Act 1971, the Home Office served her landlord with a Notice of Letting to a Disqualified Person. She was refused permission to rent and that decision was upheld on review.
My client has now been granted permission by the High Court to judicially review the Right to Rent scheme and its application to her case.
“If the case succeeds, it could have major repercussions for landlords and tenants.”
Her challenge has two bases: the scheme and its application is unlawful on public law grounds, and that it breaches the Equality Act 2010.
She is arguing that the way that the scheme operates is procedurally unfair, lacks transparency, and that it excludes tenants from the process. She is further seeking to demonstrate that it violates the Equality Act by unlawfully discriminating on the basis of race or nationality.
If the case succeeds, it could have major repercussions for landlords and tenants.
If the public law challenge is successful, it could demonstrate the inherent unfairness of the Right to Rent and permission to rent procedures and policies.
For example, depending on the court’s ruling, the Home Office may eventually be required to give a tenant notice before a Notice of Letting to a Disqualified Person is served to allow them to make representations.
Additionally, the court may find that the Home Office should give tenants clearer information about reviewing decisions related to the Right to Rent.
If the Equality Act challenge succeeds, it could have even further reaching consequences.
If the court were to determine that the implementation of the scheme is discriminatory, either directly or indirectly, it could make it difficult for the Home Office to enforce it at all.
This is because if it discriminates against one tenant, it will equally discriminate against others. Depending upon the court’s reasoning, this could expose the Home Office to legal challenges from anyone found not to have the right to rent.
From a landlord’s perspective, the Equality Act ground will be the more important of the two. It is difficult to see how the scheme could persist in its current state if that ground succeeds in whole.
It is possible that the scheme would have to be temporarily halted or amended while the government finds a solution.
Derek Bernardi, solicitor advocate and housing supervisor, Camden Community Law Centre
