Right to Rent v Human Rights

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The case concerned the Government’s “Right to Rent” scheme which has been the cause of concern for both landlords and tenants. That scheme, the legislation for which is contained within sections 20 to 37 of the Immigration Act 2014, has been found by the High Court, in a somewhat damning judgment, to be incompatible with anti-discrimination and related laws under Articles 14 and 8 of the European Convention on Human Rights (“ECHR”), incorporated into UK law pursuant to section 4 of the Human Rights Act 1998.

The Right to Rent scheme requires landlords of residential properties to check the immigration status of prospective tenants prior to the commencement of any let, with the sanctions for non-compliance being severe.

The legislation behind the scheme attracted criticism from various organisations, who claimed that it encouraged discrimination towards tenants from minority ethnic backgrounds and foreign nationals irrespective of their actual legal right to rent, at least in part because landlords were worried about the consequences of not complying with it.  Indeed, at paragraph 127 of the Judgment, the Court found that the legislation “is intended to bite, and bite hard, on landlords in order for it to be efficacious”.

The High Court found that there was strong evidence that the scheme (and any scheme of a similar type) will “inexorably lead landlords down the path of discrimination” and as such is contrary to Article 14 of the ECHR, which prohibits discrimination on grounds including nationality.

It is anticipated that an appeal by the Home Office will be made but, for now, it is expected the scheme will not be extended to Scotland, Wales or Northern Ireland without further evaluation.

Until such time as any appeal from the Home Office has been determined and/or the Government provides clarity on the issue, Landlords should continue to ensure that they comply with their obligations under the Right to Rent scheme.

We will continue to provide updates on this matter as it develops.