Right to Rent survives the Court of Appeal

The Right to Rent Scheme requires landlords (including registered providers of social housing) to check the immigration status of tenants and potential tenants (and licensees).

It also imposes penalties on landlords (and agents) who know, or have reasonable cause to believe, that premises are being occupied by those disqualified from occupying residential properties as a result of their immigration status.

The scheme has been subject to legal challenge for some time. In March 2019, the High Court declared the scheme incompatible with the European Convention on Human Rights and the decision to roll out the scheme to Scotland and Wales irrational and in breach of the Equality Act 2010. You can read more about that here.

Yesterday however, the Court of Appeal allowed the Government’s appeal and whilst it found that some landlords did discriminate, the scheme was nevertheless ‘justified’ as a ‘proportionate means of achieving its legitimate objective’. The scheme has therefore been found to be lawful.

The High Court’s declaration of incompatibility had no effect on the enforceability of the scheme in the interim period and therefore registered providers should not notice any changes in their application of the scheme. As a reminder, the scheme only applies to some lettings because it has no impact on lettings to Local Authority nominees.

Covid-19 Update:

From 30 March 2020, the Home Office temporarily suspended the requirement to check original documents as part of the right to rent checks and outlined a procedure for remote checks and follow-up checks (within 8 weeks of the Coronavirus measures ending). Home Office guidance can be accessed here. The requirements relating to who must be checked (and the number and type of documents) continue.

For more information or further advice on how we can assist then please contact Lee Russell in our Housing Management and Property Litigation team.

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