Since 2016, landlords have been tasked with taking on border control duties from the Home Office. Under the Right to Rent scheme, all landlords must check new tenants for their eligibility to live in the UK – usually by requesting to see a passport or Visa. However, a recent high court ruling that these checks are a ‘breach of human rights’, and the scheme would be illegal to roll out in Scotland, Wales and Northern Ireland. 

Illegal Discrimination

According to the Equality Act 2010, it is illegal to treat people differently based on certain protected characteristics. The court has found that the Right to Rent scheme encourages exactly that. 

During the court hearing, it was claimed that there was strong evidence to suggest that the scheme was causing “discrimination against potential tenants on grounds of nationality and ethnicity” and that this discrimination has a “real effect” on people’s ability to find a new home. 

The Joint Council for the Welfare of Immigrants (JCWI) submitted evidence in court that landlords were making decisions based on ethnicity, proven by various mystery shopper exercises. The judge concluded that Right to Rent “does not merely provide the occasion or opportunity for private landlords to discriminate, but causes them to do so where otherwise they would not”.

The government’s claim is that: “the right to rent scheme applies to all prospective adult occupiers, regardless of their nationality. Landlords, agents and householders will not be acting in a discriminatory way provided they make checks on all prospective adult occupiers”.

A British Bias 

On the face of it, this statement seems fair. If landlords are checking everybody in the same way, then there is no discrimination. The trouble is, hefty fines of £3,000 and the threat of a prison sentence are weighing on the minds of some landlords, affecting their behaviour. 

In December 2018, the Residential Landlords Association showed us that 44% of landlords say they are less likely to consider tenants without a British passport. The argument is that some landlords may disfavour applications from non-UK citizens – even if they are eligible to live in the country, out of fear of “getting it wrong”.

A tenancy application from someone without a passport is not an edge case – 17% of the UK don’t have a passport. The effect that this bias has on the rental community is amplified when you consider that people born outside the UK are three times as likely to rent privately, compared to the UK-born population. 

Even with discrimination aside, it’s right that the policy should be questioned. Right to Rent is intended to help control immigration, yet only 31 tenants were deported in its first year and more than double that amount of landlords were fined for failing checks.

No Changes just yet

The Government said it’s “disappointed” with the ruling and has been granted the right to appeal the case. In other words, Right to Rent practices are unlikely to change for landlords in England just yet. And with the penalty as high as potential imprisonment, Landlords should continue to carry out right to rent checks.

The fact that landlords still have to participate in a scheme that has been labelled ‘a breach of human rights’ will no doubt make some uncomfortable. The best remedy is to learn the Right to Rent guidelines inside out so that you will never favour an applicant over “fear of getting it wrong”.

We can offer free advice regarding your Right to Rent obligations, just give us a ring on 0117 442 0533.