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Right to Rent legal challenge – what do you need to know?

Posted on 2018-08-03

The Right to Rent scheme has been in operation since February 2016 but it remains a divisive initiative in the lettings industry.

Most agents are now used to checking the immigration status of prospective tenants on behalf of their landlords on a regular basis, but things could be set to change in the future.

So far, 2018 has been a particularly bumpy year for the Right to Rent scheme. Not only was the Government forced to update Right to Rent policy in the wake of the Windrush immigration scandal, just last month the scheme was challenged in court by the Joint Council for the Welfare of Immigrants (JCWI).

So, what does the future hold for the Right to Rent scheme and what do letting agents need to know about the challenge against it?

Explained - the challenge against immigration checks

After a long campaign, at the start of June the JCWI, with the support of key industry organisations such as the Residential Landlords Association (RLA), applied for a judicial review of the Right to Rent scheme in the High Court.

The JCWI argues that in its current form the Right to Rent scheme discriminates against foreign nationals who can't easily prove they have the legal right to rent in the UK. It claims, alongside the RLA, that the scheme forces landlords to 'play it safe' and only rent to prospective tenants with a UK passport, increasing the chances of foreign nationals falling into the hands of rogue landlords.

Over the past year or so, both the JCWI and RLA have quoted sets of research that suggest the Right to Rent scheme is encouraging discrimination.

JCWI found that 51% of landlords are less likely to consider letting to foreign nationals and 42% are less likely to let to someone without a British passport due to the Right to Rent scheme. Meanwhile, an RLA survey of almost 3,000 landlords found that 43% are less likely to rent to anyone without a UK passport and 46% are less likely to rent to a foreign national from outside the EU.

The application for a judicial review was heard and granted on June 6. JCWI chief executive Satbir Singh said he was delighted as the scheme 'creates real risks of discrimination'.

MPs call for Right to Rent to be scrapped

Around the same time of the JCWI's successful challenge for a judicial review, a cross-party group of MPs wrote to the Home Secretary, Sajid Javid, asking him to review or potentially scrap the Right to Rent scheme.

The letter was signed by politicians from the Liberal Democrats, Labour, the Green Party and Plaid Cymru, including high-profile MPs Caroline Lucas, Dianne Abbott and Harriet Harman.

Backing a report released by the Independent Chief Inspector of Borders and Immigration earlier in 2018, the letter stated the MPs' concerns that the Government may not be monitoring whether the scheme is having its intended effect and whether it could instead be creating unintended consequences.

The Home Office responded to the letter by saying that it continues to take steps to ensure the scheme is 'implemented and communicated' as effectively as possible.

Just how effective have immigration checks been?

The purpose of the Right to Rent scheme has been to stop illegal immigrants renting in the UK and also to crack down on rogue landlords who are letting properties to people who don't have the right to reside here.

There hasn’t been an abundance of figures or analysis showing how successful or otherwise it has been, however the Home Office did recently release some figures detailing the number of fines that have been handed out to landlords for non-compliance with Right to Rent.

  • As of the end of March 2018, a total of 405 fines for non-compliance with the Right to Rent scheme were issued by the Home Office.
  • Since its launch in February 2016, the period with the most fines for landlords was April to June 2017.
  • The total value of fines handed out by the Home Office between February 2016 and the end of March 2018 was £265,000.
  • This works out as landlords being fined an average of just over £650 per case of non-compliance with Right to Rent.

What next for the Right to Rent scheme?

The next stage is to see how the judicial review of the Right to Rent scheme progresses. It is believed that the review will centre around whether the scheme is in contravention of the Human Rights Act.

According to Landlord Advice UK, the courts do not have the powers to overturn the legislation. Instead, the Human Right Act only permits the courts to declare that legislation is incompatible with human rights.

If this were to happen, then Parliament would need to consider amending the Right to Rent law to make sure it is compatible with the European Convention on Human Rights.

There is currently no date set for the judicial review so in the meantime letting agents and Landlords will be required to continue carrying out Right to Rent checks as normal.

It's fair to say, however, that those campaigning against the scheme will continue to increase the pressure over the next few months. 

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