Insights - Landlord and Tenant

Right to Rent Scheme determined incompatible with the ECHR

01
Mar

 

In a recent case brought by the Joint Council for the Welfare of Immigrants, the High Court held that the current “right to rent” scheme, which applies to residential tenancies in England entered into on or after 1 February 2016, is incompatible with the European Convention on Human Rights (“ECHR”).

The “right to rent” scheme is contained within sections 20-37 (and schedule 3) of the Immigration Act 2014. The scheme requires Landlords of residential properties to check the immigration status of prospective Tenants before granting a tenancy, to ascertain whether they have the right to reside in the UK. Landlords also have a continuing obligation of ensuring that the Tenant’s right to reside in the UK does not lapse once the tenancy agreement has been granted.

The scheme was part of the government policy to control illegal immigration by preventing people who are unlawfully residing in the UK from being able to access the private rented sector, and Landlords can be fined up to £3,000 if they fail to comply with the scheme.

The High Court has held that the scheme causes discrimination by Landlords as it makes it harder for certain categories of people, who are entitled to rent in the UK, to find homes in the private rented sector. Specifically the Court held that sections 20-37 of the Immigration Act 2014 are incompatible with Article 8 ECHR (the right to respect for one’s private and family life) and Article 14 ECHR (protection from discrimination).

Given that the scheme currently only applies to residential tenancies in England, the Court held that the Home Office would be in breach of the general public sector equality duty contained under section 149 of the Equality Act 2010, should it decide to instigate the scheme in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact.


What this means for Residential Landlords

It remains to be seen whether the Home Office will appeal against this decision and until the Immigration Act 2014 is amended, Landlords in England will still need to comply with the current “right to rent” scheme despite this recent High Court decision.


If you have a query relating to this article, or require further advice on other Landlord and Tenant matters, please contact either David Low at djl@swinburnemaddison.co.uk, Head of the Property Litigation Department, or Rachel Stapleton at res@swinburnemaddison.co.uk, Solicitor in the Property Litigation Department, or call us on 0191 384 2441.


[Case: Joint Council for the Welfare of Immigrants, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 452].

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