Right to rent - right or wrong?

06 April 2019
The Immigration Act 2014 introduced, amongst a number of other things, the so-called “right to rent” checks.

The way this works is that irregular migrants - ie those who need immigration leave but do not have it - now find it difficult or impossible to rent private accommodation. (There is separate legislation that prevents them from renting local authority accommodation.)

Private landlords are now required - on pain of dire penalties - to make careful checks on prospective tenants to ensure that they have immigration leave in the UK if they need it.

An irregular migrant might be somebody who has come to the UK illegally and has never held leave. Or it might be somebody who came to the UK legally but who has subsequently become an overstayer. Becoming an overstayer sounds rather naughty but it can easily happen. It can happen by mistake because a migrant forgets to renew their visa on time; the rules about this are now very strict.

But it can also happen in more complex ways. A migrant may make an application to the Home Office to renew their visa but it might be refused. Such a migrant may be able to submit a fresh visa application within a 14-day window. If the application is a strong one then leave will be granted. However, when the original visa application is refused the migrant becomes an overstayer, and they remain an overstayer until such time as the new application is successful (if it is).

So, properly legally speaking, a person in such a position cannot privately rent (or, for that matter, work, hold a UK bank account or a driving licence) whilst they are overstaying. They may of course be privately renting already, so this puts them in a funny position. Should they move out of their rented accommodation until their immigration situation is sorted out?

Anyway, currently the right to rent legislation only pertains in England but the Government - evidently judging it to be a success - wants to extend it to the whole of the UK.

But the scheme has come under legal challenge. The Joint Council for the Welfare of Immigrants (JCWI) has taken out a judicial review action in the High Court. They argue that the scheme too easily promotes racism by landlords.

There is a certain logic to this, insofar as it is easy for landlords to look at the passport of someone who is a British citizen or EEA national and see that they have legal status in the UK. It is much more difficult for the average landlord to assess visas held by non-British and non-EEA nationals and decide whether the holder has immigration status or not. So although landlords may not have any particular intention to discriminate they may well end up doing so.

The task before the High Court was necessarily a balanced one. The British Government - like governments around the world - has the right and responsibility to control the borders and decide who has the right to come here and stay and who does not. To put it another way, the Home Secretary and Home Office are entitled to exercise immigration control.

But we live in a very legally sophisticated society these days, and the laws and rules that operate this principle are expected to be “lawful”.

It might sound strange that the law can be unlawful but it is at least partially true. The higher courts can make a declaration that an Act duly passed by Parliament does not conform to human rights principles. This does not have the effect of striking down the law. As constitutionalists and certain politicians have a habit of reminding us: “Parliament is sovereign”. But, in political terms, an item of legislation that has been impugned in this way may be fatally damaged, and Government and Parliament may seek to change it.

The High Court judge showed himself sympathetic to the JCWI’s point of view (JCWI and Secretary of State for the Home Department [2019] EWHC 452 (Admin)). There was evidence before the court that race discrimination was happening. (Intriguingly, this involved evidence emanating from a “mystery shopper” exercise.) But there was not much evidence before the court that the right to rent checks were effectively helping to control immigration.

The judge said in his decision: “I have come to the firm conclusion that the Defendant [ie the Home Secretary] has failed to justify the Scheme, indeed it has not come close to doing so,” and “Parliament’s policy has been outweighed by its potential for race discrimination”.

The judge thus decided that the balance - of the risk of race discrimination as opposed to the importance of immigration control - was not right. He proceeded make a declaration that the scheme violated Article 8 (respect for private and family life) and Article 14 (discrimination) of the European Convention on Human Rights. He also directed the Home Secretary to carry out more consultation before extending the scheme to the rest of the UK.

The Home Office was evidently not very happy with this result, and they have appealed to the Court of Appeal. We await the outcome of this with keen interest. It could ultimately result in Government and Parliament changing the law.


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