The Court of Appeal has held that the Government’s right to rent scheme (which requires landlords to carry out immigration checks on prospective tenants) is lawful in the case of Secretary of State for the Home Department v R (Joint Council for the Welfare of Immigrants). The Court held that, while the scheme could be used to discriminate against non-British nationals, the scheme is ‘justified’ overall as a ‘proportionate means of achieving its legitimate objective’.
The right to rent scheme was introduced in 2016 and requires private landlords to check the immigration status of potential tenants to ensure that they may legally rent a property. Failure to carry out such checks can result in a civil penalty of up to £3,000 for the landlord. Knowingly renting to an illegal immigrant is also a criminal offence which can result in an unlimited fine and up to five years in prison.
Broadly, the scheme requires landlords to check the immigration status of all prospective tenants, regardless of nationality. However, there was concern that, in reality, the scheme was causing landlords to discriminate against non-British nationals. Indeed, research showed that 44% of landlords were less likely to rent to those without a British passport.
When the lawfulness of the scheme was challenged in March 2019, the High Court ruled against the Government and held that the scheme caused racial discrimination and violated human rights law. The High Court also held that the scheme had “little or no effect” on immigration control and that, even if the scheme had been shown to be effective, “this was significantly outweighed by the discriminatory effect.” The Government appealed the ruling and the appeal was heard on 22 January 2020.
In April 2020 the Court of Appeal overturned the High Court’s decision and ruled in favour of the Government. While it acknowledged that the scheme could be used by landlords to discriminate against potential tenants who do not have British passports, it emphasised that the level of discrimination ought to be kept in perspective and that there was no evidence that people turned away by one landlord were unable to find alternative accommodation. The discrimination that resulted from the scheme was therefore capable of being justified by the public interest in deterring irregular immigration.
The Joint Council for the Welfare of Immigrants is seeking permission to appeal to the Supreme Court.
For now, landlords and their agents must comply with the Right to Rent scheme and carry out immigration checks. However, landlords should monitor whether this case is appealed to the Supreme Court and whether this leads to future changes to the scheme.
Guidance on carrying out right to rent checks is available here: https://www.gov.uk/check-tenant-right-to-rent-documents