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Right to Rent - more Wrong than Right?

Joint Council for the Welfare of Immigrants, R (On the Application Of) v Secretary of State for the Home Department (2019) EWHC 452 (Admin)

Following a Judicial Review, the Court has found that Sections 20-37 of the "Right to Rent Scheme", as brought in by Immigration Acts 2014 and 2016, are incompatible with Article 8 and 14 of the European Convention on Human Rights due to discrimination on the basis of nationality. Further, the Court made an Order that a decision by the Defendant to commence the Scheme represented by Sections 20-37 of the Immigration Act 2014 in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010 and so the scheme will be restricted to England for the time being, subject to appeal by the Government.

The evidence before the Court was that an unfortunate result of the Scheme was that landlords were effectively discouraged from letting their properties to non-UK passport holders. The reasons for this were due to the delays built in by the Scheme resulting in loss of income couple with the fear of civil and criminal penalties, the breach of mortgage terms, and banning orders.

It was accepted by all parties that immigration control was a legitimate aim for the Government, however, discrimination on grounds of nationality could not be justified without significant reasons. The Court found that the benefits of the scheme were not evidenced to be tangible or substantial. As such, the interference with Article 8 and Article 14 rights was not proportionate to the aims of the Scheme.The Secretary of State has been given permission to appeal.

Commentary

Anecdotally, we at Forbes Solicitors have encountered examples which would support the High Court's conclusion that the effect of Right to Rent was deterring private sector landlords from letting properties to anyone who could not produce a UK passport due to the fear of prosecution, despite warnings from the Home Office that such behaviour could be racially discriminatory. The irony of the High Court's ruling in this case is therefore surely unmissable.

It is particularly striking that the scheme, although ostensibly well-intentioned, has actually caused far more harm than any discernible benefit.

Our social landlord clients have been working hard in recent years to comply with the legislation despite the nagging feeling that they are being conscripted by the Home Office as unpaid immigration officers. Unfortunately, the legislation will remain in force for the time being while the Government ponders a potential appeal, and we fully expect that they will appeal this ruling. Private and social landlords must therefore continue to comply with the Right to Rent checks unless and until the law on this is changed. Social landlords will need to take particular care when faced with the prospect of evicting tenants who have breached the Right to Rent requirements, and should seek urgent specialist legal advice.

For any queries by local authority or registered provider landlords, please contact Lachlan McLean or Lucie Cocker. For any queries by private sector landlords, please contact Stephen McArdle.

Please note that we are not authorised to give immigration advice

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