The Team

Landlords’ immigration checks now unlikely
Landlords’ immigration checks now unlikely

A recent High Court decision in England now means the prospect of Landlords “policing” the immigration or nationality status of their tenants has now receded.

The “right to rent” scheme was introduced in England in 2016 in order to evaluate its effectiveness. The scheme required private landlords to check the status of potential tenants to ensure they had the right to remain in the UK and, if so, would then be entitled to rent the property. A failure to carry out these checks was a criminal offence punishable by up to  five years imprisonment or a fine.

The UK Government’s aims were two-fold. Firstly, to ensure the availability of private rented property for UK citizens and those entitled to reside in the UK and, secondly, to outlaw unscrupulous landlords who might otherwise exploit illegal immigrants and allow them to be penalised for doing so.

This scheme was introduced  by the Immigration Act 2014  (click here to view) where Sections 20 – 37 deal specifically with the prohibition of tenancies to persons who have no entitlement to reside in the UK. Section 21 outlines the principal provision and you can view that here.

The plan was to roll the scheme out to other parts of the UK if the scheme had proved successful in England. The Scottish Association of Landlords has long opposed its introduction in Scotland

The argument laid before the court was that the practice was discriminatory and incompatible with Article 14 of the European Convention on Human Rights when read in conjunction with Article 8. You can read the European Convention on Human Rights by clicking here.

What actually happened was that landlords erred on the side of caution when seeking tenants for their properties and this led to people who were perfectly entitled to reside in the UK being turned away because of their apparent race or ethnicity.

The Judge, Mr Justice Martin Spencer, agreed that the legislation was incompatible with the European Convention on Human Rights and also said it would be unsafe to roll it out to Scotland and other parts of the UK. In his judgement he said: “In my judgment, the experience of the implementation of the Scheme throughout England has been not that there will be merely a risk of illegality should the Scheme be extended to the devolved territories but a certainty of illegality because landlords in those territories will have the same interests and will take into account the same considerations as their counterparts in England.”  (you can read the full judgement here).

In his conclusion, Mr Justice Martin Spencer also said: “An Order declaring that a decision by the Defendant [The Home Office}] to commence the Scheme represented by sections 20-37 of the Immigration Act 2014 in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.”

The UK Government now must review the decision and determine if this should be appealed. Until that decision is made, it’s unlikely the UK Government will consider extending the scheme to Scotland or any other parts of the UK.