Right to Rent has been branded a “farce” after a second court ruling which suggests that agents and landlords following Home Office protocol could be exposed to accusations that they have breached human rights.
Under Right to Rent, landlords or their agents must check the immigration status of all prospective tenants.
This regime, where penalties are significant and include civil fines and criminal sanctions such as prison, is now under significant challenge.
In the first case, due to be appealed by the Government, it was ruled that the scheme breached the European Convention on Human Rights.
The Judge said that it encouraged landlords to discriminate when they would not otherwise have done.
In the newer ruling, the Residential Landlords Association says that the High Court’s decision means that any agent or landlord seeking to repossess a property where the Home Office says that the tenant does not have the Right to Rent, could themselves breach equality law.
The case was heard by the same Judge, Mr Justice Martin Spencer, who earlier ruled that Right to Rent is intrinsically a breach of human rights.
Where the Home Office identifies a tenant without the right to rent, it issues a formal notice to the agent or landlord who then uses this as the basis to repossess the property.
In the R (Goloshvili) v Secretary of State [2019] EWHC 614 (Admin) case, the landlord followed procedure.
The landlord suspected that the tenant did not have the Right to Rent, contacted the Home Office helpline, and was duly issued with a Notice of Letting to a Disqualified Person (NLDP).
The landlord was warned: “You could face an unlimited fine or be sent to prison for up to five years.”
The landlord then served a notice for possession.
However, the High Court has now ruled that an NLDP breaches the Equality Act on the basis that it amounts to “direct discrimination on the basis of nationality . . . and race”.
The RLA says that this means that agents and landlords who do as directed by the Home Office are now themselves open to breaching equality law – and do not have the exemption that the court has ruled that the Secretary of State has, in a victory for the Government.
The RLA has now written to the Home Office to seek urgent changes to address what it says is a farcical situation, with agents and landlords placed in an invidious position.
The letter, to minister Caroline Nokes, says: “We consider that urgent legislative reform is needed in order to ensure that landlords are provided with a complete exception from the Equality Act 2010 where they act in response to the service of a Notice of Letting to a Disqualified Person.”
David Smith, policy director for the RLA, said: “This new ruling makes Right to Rent a farce. To put landlords in a position where acting on a direct instruction provided by the Home Office leaves them open to breaching equality law cannot be tolerated.
“With the High Court having ruled that discrimination is baked into the Right to Rent scheme, it is time for the policy to be scrapped altogether.”
Smith told EYE that agents acting on behalf of landlords are equally at risk if they try to repossess properties on the instruction of the Home Office.
Agents and landlords must continue to carry out Right to Rent checks, as the regime is still in place.
A full transcript of the judgement in the R (Goloshvili) v Secretary of State [2019] EWHC 614 (Admin) case is here:
http://www.bailii.org/ew/cases/EWHC/Admin/2019/614.html
EYE NEWSFLASH: Right to Rent ‘breaches human rights’ court ruling
Comments (10)
Although I disagree that agents and landlords have to act as immigration officers, frankly it does not solve the problem it was intended to solve, the main advantage to right to rent checks is that it enforces ID checking of prospective tenants, something that should be done whether right to rent exists or not. As such, as and when right to rent is no longer a requirement, not much will change with regard to our initial ID checking processes.
I would expect this will be especially pertinent for those that are being told by their banks that they need to follow the bank’s AML policies.
I don’t think many would dispute the need to ID check prospective tenants, but it was never ever right that the legislation essentially asked estate/letting agents to be immigration officials. The whole thing is now an absolute joke because according to the legislation if an agent doesn’t carry out these checks and allow someone to rent a property who isn’t here ‘legally’ then they are liable to be prosecuted, but according to this court ruling if they do carry out these checks and stop someone who isn’t here ‘legally’ from renting a property or evict said person if they are already renting then you are also liable to be prosecuted. So basically you’re screwed either way.
Brilliant!
“direct discrimination …………….
OK and you are not supposed to be in this country!!!!!!!
So if you don’t do the checks you can be prosecuted, and if you do do the checks you can be prosecuted, but you have to do the checks by law.
Wow, you can see that this has been well thought through………..
I’m guessing that the governments lawyers who drafted this were referred to them by a certain well known PLC…
I bet the government still doesn’t change it in a hurry !
Is to just me, or is it obvious that “Mr Justice Martin Spencer“ is simply wrong. I’m not sure he understands the concept of nationalism and how countries work. Every time in history when national identity has been removed, other identities have risen to replace it (usually religion or race) and it’s always ended badly. Belonging to a country encourages strangers who have never met to support each other, one paying tax while another claims benefits, and we accept that because we are all part of the same country. Removing that has always ended badly. If we are to move to a world without physical borders, then we need checks by employers and landlords to stop illegal immigrants working and living where they are not meant to. Anything else is not fair on the legal immigrants and genuine citizens. In other words, you’re supposed to descriminate on the basis of nationality in these cases. That’s why we have immigration laws. Removing nationalism ends badly, in much the same way as removing free market capitalism ends badly. When will we learn this lesson, how many examples from history will it take, how many deaths? I think Mr Justice Martin Spencer is just wrong (poorly educated) and so we should continue to do the right to rent checks. I’m sure another judge will soon realise this and issue new guidance clearing it up. Am I missing something?
Yes it’s lucky the nation removed the legal protection for Windrush immigrants in the rush to protect the national identity.
This is not about stopping people from coming to this country legally or stopping right to rent checks. The problem with human rights and equality comes from making a landlord check the variety of documentation that could be presented to them in a right to rent check.
Take this example (purely hypothetical):
I have 5 applicants: 4 are international applicants which the landlord knows are going to have a variety of documentation some in different languages, I then have 1 UK applicant most likely they will have a UK passport.
The landlord is going to pre-judge the 4 international applicants over the right to rent check and think what if I get this wrong I could be in big trouble.
A landlord is going to take the route of least resistance, they would be stupid not to as if they take the UK applicant then they know the check is going to a lot easier and the safest option, hence they have discriminated over where someone is from even before an application has been sumbitted.
By putting landlords in charge of this check they are unqualified in doing so as they are 100’s of combinations of documents that could be presented to a landlord and it is an unfair burden in an already heavily policed industry.
If the applicant doesnt have the right to rent/live or work in this country then this should be reported and the home office should investigate this themselves.
Hold on…are we to understand that something that the Govt. has implemented relating to the PRS, may be a farce…???
How very dare they….!