“Right to Rent” Checks and the European Convention on Human Rights

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In the latest UK200Group blog post Daniel Ginsbury Partner, Ingram Winter Green discusses “Right to Rent” Checks and the European Convention on Human Rights

Daniel Ginsbury
New criminal offences were introduced by the Immigration Act 2016, targeting landlords and agents who omit to carrying out right to rent checks, or fail to take steps to evict illegal immigrants from residential properties, owned or managed by them in England. A landlord who commits an offence can be liable to a fine, up to five years’ imprisonment, or both sanctions.

That Act also introduced provisions making it easier for landlords to remove illegal immigrants as tenants of their properties in England. In some cases, landlords can proceed to eviction without obtaining an order of the Court.

The “right to rent” requirements, which were originally introduced by the Immigration Act 2014, preclude private residential landlords from allowing an adult to occupy residential premises under a tenancy agreement, if that adult occupier is disqualified due to adverse immigration status.

Agents and landlords are required to investigate the status of their intended tenants, and of any other authorised occupiers, to check whether they have the right to occupy the premises in question, before granting any tenancy to them.

Residential landlords must also ensure that a tenant’s right to occupy their property does not lapse, after the tenancy agreement has been granted. A breach of this prohibition can attract a civil penalty, which could total as much as £3,000.

However, carrying out the right to rent checks required under the IA 2014, affords a residential landlord a statutory defence, when threatened with a penalty.

In a recent case (Joint Council for the Welfare of Immigrants, R (On the Application Of) v Secretary of State for the Home Department [2019]), the High Court ruled that the "right to rent" scheme was not compatible with Article 8 - right to respect for private and family life; nor Article 14 - non-discrimination - of the European Convention on Human Rights.

The High Court reasoned, that the scheme engendered discrimination on the part of landlords and letting agents, as certain categories of people who were legally entitled to rent, were now having greater difficulty in obtaining accommodation. The Court ordered that the following declarations be made:

i. Sections 20-37 of the IA 2014 are incompatible with Article 14 ECHR in conjunction with Article 8 ECHR.

ii. If the Home Office decides to commence the "right to rent" scheme in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact, it would be irrational and breach section 149 of the Equality Act 2010.

Notwithstanding this ruling, residential landlords and letting agents in England will still be required to comply with all aspects of the "right to rent" legislation, until such time as the relevant government department takes steps to amend the IA 2014 (see above).

It is not yet known whether or not the Home Office will seek to appeal against this decision.

To discuss the above or for any other legal advice on landlord and tenant or property transactional matters, contact Daniel Ginsbury of Ingram Winter Green LLP Solicitors: danielginsbury@iwg,co.uk

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