Court of Appeal decision on right to rent scheme

The Court of Appeal has handed down judgment in the decision of The Secretary of State for the Home Department v. The Queen on the Application of the Joint Council for The Welfare of Immigrants [2020] EWCA Civ 542 in relation to right to rent checks that a landlord is required to undertake prior to the commencement of a new tenancy. 

Residential landlords in England are required to undertake right to rent checks to ensure that the proposed occupants have a “right to rent”. The proposed occupants must therefore provide satisfactory evidence that they are British Citizens or have leave to enter or remain in the UK. 

A challenge was brought in the High Court by the Joint Council for The Welfare of Immigrants that the right to rent checks were a breach of the European Convention on Human Rights (“ECHR”).

The High Court held that the right to rent scheme was incompatible with Article 14 (enjoyment of ECHR rights without discrimination) of the ECHR when read in conjunction with Article 8 (right to respect for private and family life) and a decision to commence the scheme in Scotland, Wales and Northern Ireland would likely be a breach of Section 149 of the Equality Act 2010 due to the potential for discrimination.  However, the Government appealed on 6 grounds.

Despite finding that the scheme did, to an extent, increase the risk of discrimination, the Court of Appeal allowed the Government’s appeal and dismissed the Joint Council’s cross-appeal with Lord Justice Hickinbottom stating “with respect to the contrary conclusion of the judge, considering all those factors (including the discrimination to which it gives rise), whether seen in terms of the manifestly without reasonable foundation criterion or on a simple proportionality balancing exercise, I consider the Scheme to be a proportionate means of achieving its legitimate objective and thus justified.”

The decision confirms that the scheme is proportionate and justified and, as such, landlords must continue to comply with the requirements of the scheme when letting residential properties within the private sector. 

It is also worth highlighting that in light of the Coronavirus outbreak, the Government has made temporary adjustments to the way in which landlords carry out right to rent checks. A tenant may send a landlord scanned copies or photographs of their passport or other documents confirming their immigration status and the landlord may now ask to see the original during a video call to verify it against the digital documents. When the temporary adjustments are withdrawn, a landlord will be required to carry out the usual pre-COVID-19 checks retrospectively on tenants who started their tenancy during this period.  If a tenant is found not to have had the right to rent, a landlord must take steps to end the tenancy and a landlord must comply with its reporting obligations to the Home Office. Further information as to the adjusted requirements can be found here in the Government’s guidance note.

This article was written by Tanya Pinto at Charles Russell Speechlys. For more information, please contact Tanya on +44 (0)1483 252575 or at tanya.pinto@crsblaw.com.

This article is not a substitute for legal advice on the specific circumstances of your chase.