‘Right to rent’ checks were imposed on landlords in 2016 (earlier for some areas).
They are not mandatory. But if done properly, they will provide a ‘statutory excuse’ if tenants are found to be without a right to rent. If there is no ‘statutory excuse, ’ landlords face fines or a custodial sentence.
In January of this year, the fines were increased massively, to up £10,000 for landlords and up to £5,000 for lodger landlords (for a first offence). Which are surely disproportionate?
Why the right-to-rent regime was imposed
It’s all part of Conservative hostility to unlawful immigrants.
It was originally dreamed up during the coalition when the Liberals (to give them credit) objected to it being imposed without a trial first. However, in 2016, the conservatives obtained an outright majority. So the trial was abandoned and the scheme introduced in England. Without, I understand, the trial being properly analysed.
It has never been introduced in the rest of the UK. So Scotland, Wales and Northern Ireland are ‘right to rent’ free.
The reasoning behind it was to discourage illegal immigration. As illegal immigrants would struggle to find somewhere to live. Similar rules are in place for employers.
However, as we are told that illegal immigration (such as in boats across the channel) is increasing, it does not seem to have had much of a deterrent effect.
The contradiction at the heart of right-to-rent
In view of the massive penalties for non-compliance, the obvious response for landlords is to avoid renting to anyone who could possibly be without a right to rent.
This, in most cases, means not renting to anyone who ‘looks foreign’, has a foreign accent or name or who does not have a UK passport. UK passports being much easier to recognise than the myriad of other documentation held by immigrants with a right to rent.
So, the legislation is, in effect, encouraging discrimination. This was indeed accepted by the Court of Appeal in 2020 in the legal challenge brought by the Joint Council for the Welfare of Immigrants (discussed in our video interview with Justin Bates KC).
The Court of Appeal rejected the claim, however. Saying that although it was inherently discriminatory, they could not interfere as it was a matter of policy.
Discrimination, though, is unlawful, and there is a government guide to avoiding discrimination. The effectiveness of which is doubtful.
How the right-to-rent regime encourages discrimination
- The fines are now massive, plus landlords may be vulnerable to a custodial sentence. So most landlords will want to take a ‘low risk’ approach
- It is easier to recognise a British Passport than ‘foreign’ documentation
- Checking non-British applicants’ paperwork may take some time (particularly if you have to request a Home Office right-to-rent check). Most landlords will want to re-let ASAP to reduce voids (when they will not be receiving rent)
- If you discriminate when choosing tenants, you just risk those applicants bringing a claim for compensation. Which is arguably less of a risk than the Home Office imposing penalties for breaching the right-to-rent rules
Why the right-to-rent regime should be abolished
Despite what anyone says, the effect of this legislation is to encourage landlords to discriminate.
It is not proven to have actually discouraged illegal immigration. It can, therefore, be said to have caused a lot of trouble (and expense) for landlords and agents without achieving its objective.
It is also a deeply distasteful system – as most ‘foreign sounding’ or looking tenants will agree.
If a Labour government take office, they have promised to abolish section 21 within their first 100 days. This is going to be very unpopular with landlords.
The government will, however, want to encourage landlords. As if too many sell up and leave the sector, this will only make the current housing crisis worse.
Landlords object strongly to the right-to-rent rules, so abolishing them will go some way towards appeasing them for the loss of section 21.
And counter the prevailing view that a Labour government will be ‘anti-landlord’.
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