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Not that long ago we reported on the high court case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWHC 452 (Admin) that held that the right to rent checks carried out by landlords at the government’s instigation are discriminatory. The high court ruling was welcomed by immigration solicitors, landlord and tenant lawyers and landlords as right to rent checks are unpopular with both tenants and landlords. The court of appeal has now reversed the high court ruling. However, the Joint Council for the Welfare of Immigrants has said that it will appeal against the court of appeal ruling. In this blog we look at the court of appeal case and where it leaves landlord and tenants.
The right to rent court proceedings
In the latest instalment of the right to rent litigation the Home Office has won its appeal over the high court ruling that labelled the right to rent scheme as racially discriminatory. Campaigners and immigration lawyers had hoped that the high court ruling might see an end, or at least significant changes, to the right to rent checks that were first implemented as part of the immigration hostile environment policy. Those hopes were dashed by the court of appeal ruling.
The right to rent scheme
Some people think that we have bigger things to worry about at the present time than the right to rent checks and the fairness of the scheme. However, Covid-19 and the global pandemic have shown just how vulnerable some tenants are and also the financial pressures landlords are under when they have mortgages to pay and tenants who are struggling to pay rents. In these challenging times it should not come as too much of a surprise that landlords don’t want to wait to check the right to rent of those who can't immediately provide a British passport as evidence of their right to rent and immigration status.
landlords have complained about the scheme saying that the right to rent policy requires them to act as an agent of the Home Office and conduct immigration checks on all potential adult tenants. However, unlike Home Office officials, if a landlord forgets to carry out the right to rent check or fails to record the check or complete it in accordance with the right to rent regulations, they can face a fine and, in extreme cases, up to five years in prison.
The high court decided in the widely reported case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWHC 452 (Admin) that requiring landlords to check the immigration status of prospective tenants and tenants was unlawful and racially discriminatory. That is because the scheme unintentionally encouraged landlords to accept prospective tenants who could easily fulfil the requirement to produce evidence of the right to rent (for example, British citizens with UK passports) and to refuse to rent to and to discriminate against foreign nationals who had legal immigration status in the UK and therefore a legal right to rent. The high court also said that the right to rent scheme was discriminatory against BAME British citizens.
The high court ruled that the right to rent policy:
Had a disproportionately discriminatory effect and
Had little to no effect on controlling immigration and preventing overstaying
Was incompatible with the right to freedom from discrimination.
The Home Office appealed against the high court ruling on the right to rent check policy on the basis that the scheme was justified and that the end justified the means as by carrying out right to rent checks in accordance with the legislation landlords prevented illegal immigrants and over stayers from renting private accommodation.
The court of appeal concluded that while some landlords did discriminate against prospective tenants without British passports, the right to rent scheme was none the less justified as a proportionate means of achieving its legitimate objective of immigration control.
The leading judge in the court of appeal case said:
As a result of the right to rent scheme some landlords do discriminate against potential tenants who do not have British passports, and particularly those tenants that do not have British passports or ethnically-British attributes such as their name
The nature and level of the discrimination against prospective tenants created by the right to rent scheme must be kept in perspective
Whilst as many as half of landlords might discriminate against foreigners, the evidence did not prove that prospective tenants refused a tenancy by one landlord would be unable to find a landlord that would rent accommodation to them
The discrimination that results from the right to rent policy is capable of being justified by the public interest in deterring illegal immigration
The discrimination was said to be an indirect consequence of the right to rent scheme rather than a planned or intended consequence
The evidence points towards the right to rent scheme having made a “more than insignificant’’ contribution towards deterring illegal immigration.
The third judge was firmly of the view that there is no evidence that discrimination is created by the right to rent policy.
To human rights lawyers the court judgement is difficult reading as whilst two of the three court of appeal judges acknowledged that some landlords discriminate against prospective tenants who don’t hold a British passport (due to the administrative convenience of accepting a tenant who is a British citizen with passport and who has a straightforward way to produce evidence of their right to rent) the court went onto say that most landlords don’t discriminate by picking and choosing tenants who will obviously pass the right to rent checks and easily be able to produce the right paperwork.
The Joint Council for the Welfare of Immigrants (JCWI) opposed the Home Office appeal and argued that the Home Office was responsible for the discriminatory effects of its actions, whether intended or not as a consequence of the right to rent checks. The JCWI is appealing the court of appeal decision to the supreme court. Landlord and tenant solicitors as well as immigration lawyers welcome the decision of JCWI to appeal the court of appeal ruling because:
Increasing numbers of people are either choosing to rent from private landlords or have no choice because of the unavailability of social housing or the unaffordability of purchasing a property with a mortgage. The number of ‘’generation renters’’ is likely to rise because of the economic fallout of Covid-19
It is estimated that seventeen percent of people living in the UK don’t hold a British passport. That is nearly one in five people in the UK. With the end of free movement for EU citizens and the implementation of the new UK points based immigration system it will be harder for EU citizens to be easily able to prove their right to rent through production of their EU passport as they will be subject to the same immigration controls as non-EEA nationals (unless they can prove they have Permanent Residence, settled status or pre-settled status under the EU Settlement Scheme)
If, as feared by many, some form of lockdown will become the ‘’new norm’’ because of Covid-19 it is more important than ever that prospective tenants and current tenants are able to find and stay in their rented accommodation without imposing right to rent check challenges for landlords.
From the perspective of the JCWI any amount of racial discrimination is unacceptable and the fact that the court of appeal thought the discrimination was a collateral or unintended consequence of the hostile environment right to rent policy does not make it or the policy right.
Top London immigration solicitors say pending the outcome of the appeal to the supreme court the best option is for both landlord and tenants to fully comply with the right to rent checks and procedures.
If you need legal advice about landlord and tenant law or personal immigration law and your right to rent then the landlord and tenant team and personal immigration law team at OTS Solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry form to arrange a video conference or telephone appointment.
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Posted on: Monday, 27 April, 2020