Background
The Immigration Act 2016 gave rise to Right to Rent which requires landlords in England to check the immigration status of Tenants they rent properties to.
The Act effectively creates three categories of Tenants:-
(a) those with a right to rent;
(b) those with a limited right to rent;
(c) those with no right to rent.
The second category refers to persons residing in the UK on a time limited visa for example, and the third category includes persons not lawfully in the UK.
Controversially, the legislation places obligations on, and provides sanctions to, the Landlord who is prohibited from either renting a property to someone who does not have an appropriate right to rent or allowing an adult without a right to rent to remain at that property.
Obligations on Landlords
As a result of the Immigration Act 2014, Landlords are required to carry out checks in relation to the immigration status of potential Tenants, failing which a civil penalty of up to a £3000 fine, per contravention, could be issued to the Landlord. Further, the Immigration Act 2016 increased the sanctions on Landlords to include up to 5 years imprisonment.
The Government website provides a long list of documents which can be checked by Landlords to ensure that their potential Tenant has the appropriate right to rent a property within the UK. This includes Government issued ID cards, passports etc. The obligation on the Landlord is to check the document, take a copy of the same and to carry out renewal checks in the situation where the Tenant is subject to time limited right to rent.
If a Landlord mistakenly believes that a Tenant has a right to rent but it transpires that they do not, the Secretary of State can serve a Notice upon the Landlord that they must bring Possession Proceedings against the Tenant. Indeed, failure to carry out the appropriate steps to evict the Tenant upon receipt of the Notice from the Secretary of State is, in itself, a criminal offence.
Discrimination
You may recall, of course, that when the legislation was first introduced, much media coverage focused on the fact that the obligations to carry out the checks have been unfairly placed upon Landlords. What subsequently transpired was that Landlords would tend to favour Tenants who would appear to have an absolute right to rent, over and above those whose right to rent may be temporary or questionable.
Research carried out by the Joint Council for the Welfare of Immigrants concluded that the Right to Rent Scheme was causing Landlords to discriminate against people who appeared to be foreign, or who did not have a British Passport.
Given the extreme sanctions applicable if Landlords failed in their obligations to carry out the necessary checks or, if they mistakenly allowed a Tenant to move in when they had no right to do so, it is perhaps quite understandable that Landlords would prefer to opt for the “less risky” Tenant with whom they could ensure compliance with the Immigration Act 2014 and 2016.
For example, faced with two Tenants, one with a foreign Passport which the Landlord could not verify for authenticity, and another with a British Passport, the Landlord could not be criticised for choosing the Tenant with the British Passport in order to extinguish any risk of failing in their compliance with the regulations, and thereby avoiding sanctions.
The Joint Council for the Welfare of Immigrants in fact carried out some further research and found that Landlords, in seeking to comply with the legislation, appeared to prefer Tenants who appeared to be Anglo-Saxon, as they would be of “less risk”. They therefore concluded that the Immigration Acts of 2014 and 2016 were directly causing Landlords to adopt a discriminatory approach.
R (JCWI) -v- Secretary of State
The Joint Council for the Welfare of Immigrants therefore brought a case against the Secretary of State on the basis that the Government is responsible for that discrimination, as a result of the Legislation it produced, and that the scheme violates the rights of prospective Tenants and is incompatible with the Human Rights Act 1998.
The High Court found in favour of the Joint Council for the Welfare of Immigrants, concluding that the logistics of the scheme caused Landlords to discriminate where they would not otherwise do so and that that discrimination was an inevitable and rational response to the scheme given the extreme sanctions applicable.
The Secretary of State appealed to the Court of Appeal who have reversed the decision of High Court confirming that, whilst the scheme does cause discrimination, this is a question of Immigration policy and that discrimination can therefore be justified if it is proportionate. The Court of Appeal confirmed that, whilst the scheme may lean Landlords towards discrimination, it certainly does not make them discriminate and that, given that the legislation is in relation to Immigration policy, the Government is given a wide degree of deference.
Looking at the above, it would appear that the High Court addressed the discrimination point whereas the Court of Appeal approached the Immigration policy point. Neither Court would appear to have made an incorrect decision, as both addressed different issues but, it would appear likely that the matter will be appealed to the Supreme Court.
Present Position
At the time of preparing this article, the obligations upon Landlords remain unchanged and so it is essential that, if renting properties in England, proper checks are made in relation to the Tenant’s right to rent. Details of the various ways of checking a Tenant’s right to rent are, as above, contained on the Government website.
Should you wish to discuss any issues arising out of the Right to Rent scheme or the Immigration Acts giving rise to the same, or any other Landlord & Tenant issues, please do not hesitate to contact our Janine Griffiths, Head of Landlord and Tenant at [email protected] or on 02920470909.