Residential property: Government’s Right to Rent scheme is incompatible with Human Rights Act

England, Wales

Landlords, their agents and tenants will be digesting the news that the High Court has ruled that the Government’s right to rent scheme is in breach of the Human Rights Act (see Joint Council for the Welfare of Immigrants v Sec of State for the Home Department).

Background to the right to rent scheme

The controversial right to rent scheme was introduced by Theresa May, when she was Home Secretary.  The scheme came into force in 2016 (in England only), with the aim of helping the Government deal with landlords who let residential properties to illegal immigrants.

Under the scheme, landlords of residential properties are required to check the immigration status of prospective tenants (and other occupiers) to ascertain whether they have the right to be in the UK:

  • there are criminal sanctions for landlords (and their agents) that fail to comply with their right to rent obligations;
  • landlords can terminate a residential tenancy where the Secretary of State has served notice stating that the occupiers are disqualified from occupying the premises as a result of their immigration status;
  • the mandatory grounds for possession of residential properties in the Housing Act 1988 include a ground relating to tenants or adult occupiers who are disqualified (i.e. they do not have the right to enter or remain in the UK).

What has the court decided?

The judge in the case said that the scheme is incompatible with the right to freedom from discrimination, and has had “little or no effect” on its aim of controlling immigration and any effects of the scheme are “significantly outweighed by the discriminatory effect”.  The judge went on to say that the scheme “does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not.” 

Must landlords still carry out immigration checks?

The practical question for landlords and their agents is whether they still need to comply with the right to rent scheme and carry out immigration checks.  The answer is yes, for the time being, as the legislation which introduced the right to rent scheme remains in force.

The Government has been given permission to appeal the decision, so watch this space for the outcome of any appeal.