Right to Rent checks to remain following Court of Appeal decision

The Court of Appeal in R (on the application of the Joint Council for the Welfare of Immigrants v Secretary of State for the Home Department) has upheld the legality of the Right to Rent Scheme (Scheme) that obliges landlords to check the immigration status of tenants.

This means that rent checks must continue to be carried out to confirm that prospective tenants have a right to rent before a tenancy is entered into.

• The Court of Appeal decision confirms that right to rent checks are not unlawful under the Human Rights Act, reversing a decision of the High Court which we reported on here in April 2019. The Joint Council for the Welfare of Immigrants argued in the High Court case that the Scheme was unlawful because it encouraged “systematic discrimination” against foreign nationals, British citizens without passports and British black and minority ethnic tenants on grounds of race and nationality and was therefore incompatible with the European Convention on Human Rights;
• The Court of Appeal held that the Scheme was a “proportionate means of achieving its legitimate objective”, and was therefore justified. However its finding that the Scheme did, to an extent, increase the risk of some discrimination, is likely to raise concerns.

The Right to Rent

The right to rent requirements were brought into force in England only in February 2016 under the Immigration Act 2014. The Scheme has not yet been implemented in Scotland, Wales or Northern Ireland.

The Scheme aims to prevent illegal immigrants from accessing the private rental sector and unscrupulous landlords exploiting vulnerable migrants, sometimes in very poor conditions. The right to rent Code of Practice sets out what landlords are expected to do.

Right to Rent checks

Under the Scheme:

• Private landlords of residential properties are required to check the immigration status of prospective tenants (and other occupiers e.g. lodgers) to ascertain whether they have the right to be in the UK and can legally rent a residential property in England. The policy also affects commercial landlords if they own residential property (for example, residential flats in mixed developments/ over retail units);
• The checks must be carried out before the start of the tenancy, on all people aged 18 or over who will live at the property as their main home, whether they are named in the tenancy agreement or not;
• Certain types of property are exempt such as social housing, some student accommodation and leases of seven years or more of residential property;
• A contravention of the right to rent requirements can result in a fine of up to £3,000. However, if landlords knowingly rent out their property to an illegal immigrant, or have reasonable cause to believe that the tenant has no legal right to remain in the UK, this amounts to a criminal offence which can attract an unlimited fine and up to five years in prison;
• A landlord may have a defence where it takes reasonable steps to terminate the tenancy within a reasonable time of becoming aware of the true immigration status of the tenant. However, the termination process involves obstacles which must be overcome, despite the Immigration Act 2016 introducing provisions making it easier to evict illegal immigrants;
• Landlords can pass responsibility for rent checks onto letting agents, but this has to be clearly agreed as part of the landlord’s contract with the agent.

Court of Appeal decision

The Court concluded that those who do have a right to rent, but not a British passport, were subject to some discrimination on the basis of their nationality and this was caused by the Scheme. However the Court stressed that this discrimination is not a rational or logical outcome of the Scheme, and noted the evidence which indicated that over half of all landlords do not discriminate in this way. As the Scheme was a “proportionate means of achieving its legitimate objective”, it was therefore justified.

COVID-19 ramifications

The Home Office and Immigration Enforcement has published guidance for landlords carrying out right to rent checks during the COVID-19 pandemic. Right to rent checks will continue to be necessary; however, they have temporarily been made easier to enable landlords to carry them out currently. As of 30 March 2020, landlords will be able to carry out checks over video calls (as opposed to face-to-face) and accept scanned or photographed documents from tenants. A further announcement will be made by the Home Office to inform landlords of when these temporary measures will cease to apply. 

The recommended process for landlords carrying out right to rent checks during the COVID-19 pandemic are:

• ask the tenant to submit a scanned or photographed copy of their original documents via email or a mobile app;
• arrange a video call with the tenant and request that they hold up their original documentation to the camera. Check the original against the digital copy on file;
• record the date of the check and mark it as ‘an adjusted check has been undertaken on [insert date] due to COVID-19’

When the temporary measures are withdrawn, a landlord will be required to carry out the usual pre-COVID-19 checks retrospectively on tenants who started their tenancy during this period. Landlords in these circumstances, will be given an eight-week grace period to carry out a retrospective right to rent check. This retrospective check should contain the wording ‘the individual’s tenancy commenced on [insert date]. The prescribed right to rent check was undertaken on [insert date] due to COVID-19.' Both the initial and the retrospective check must be retained on the tenant’s file. 

If, during a retrospective check, the landlord finds out that the tenant does not have immigration permission to rent, they must end their tenancy (following the correct steps). The Home Office makes it clear that it will not take any enforcement action against those who carry out the right to rent checks correctly, as set out above. 

If, during a follow-up check, the landlord finds out that a tenant no longer has the right to rent, this must be reported to the Home Office on the date the retrospective check is carried out. 

The arrangements are temporary and will need to be regularly monitored by landlords and their letting agents. 

Comment

The Court of Appeal decision makes it clear that right to rent checks are here to stay, at least for the time being. The government has promised to “continue to work with landlords and lettings agents to ensure that the scheme is operated in a lawful way”. It remains to be seen whether a final appeal will be made to the Supreme Court.