Right to Rent Checks And The Rights Of Tenants

For migrants wishing to rent property in the United Kingdom, 2016 will be a pivotal year for change and it is imperative that current and prospective migrants be fully aware of the storm that is coming in the form of Right to Rent checks.

Earlier this month it was announced that from 1^st February 2016, all UK landlords will be required to check that prospective tenants have a legal right to be in the UK or face a fine of up to £3,000 per tenant. Furthermore, the Immigration Bill 2015, which has passed its second reading and is now at the Committee Stage in the House of Commons, is highly likely to become law by late 2015/early 2016, given the Cameron Government’s determination to crack down on Immigration. One of the provisions of the 2015 Bill is to increase the penalty for landlords who fail to carry out adequate right to rent checks to up to five years imprisonment.

The Concerns for Tenants over Right to Rent Checks

Concern is mounting on how right to rent checks will affect tenants. Issues worrying Human Rights groups and Immigration watchdogs include:

• landlords being reluctant to rent property to individuals of certain ethnicities
• tenants being evicted from their homes
• landlords carrying out checks incorrectly, leading to wrongful eviction or being refused a tenancy

There are two main pieces of legislation that must be complied with when right to rent checks are being made:

1. The Equality Act 2010
2. The European Convention on Human Rights

The Equality Act 2010

The Equality Act 2010 protects all individuals who possess one of the following nine protected characteristics from discrimination, victimisation and harassment:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion and belief
• Sex
• Sexual orientation

A landlord who refuses to rent a property, or directly or indirectly discourages a person from applying to rent a property on the grounds of their race and/or religious beliefs may be found in breach of The Equality Act 2010. Individuals affected by the breach have the right to claim damages in Court.

The Equality Act says the following things could be unlawful discrimination when renting a property if it's because of a protected characteristic:

• offering a property on worse or less favourable terms
• refusing to let a property to certain individuals
• treating a person badly or less favourably
• not allowing certain tenants to use certain facilities or benefits - for example, a communal garden, or imposing conditions or restrictions on their use of these things
• evicting a person or taking steps to evict them
• behaving in a way which causes an individual distress or offends or intimidates them - this qualifies as harassment under the Act
• punishing a person because they complain about discrimination or help someone else complain - the Equality Act calls this victimisation.

The Government has published a guide for landlords on how to avoid breaching the Equality Act 2010 when performing right to rent checks. However, the Shadow Home Secretary, Andy Burnham has warned that research shows that some landlords are reluctant to let to people with foreign-sounding names or accents view and/or tenant their properties.

The factors that will drive otherwise well-meaning landlords to discriminate will be based on two things:

1. Fear
2. landlords being unsure of the process

Fear

If the Immigration Bill 2015 passes with a provision to raise the penalty from non-performance or inadequate performance of tight to rent checks to up to five years imprisonment, who could blame some landlords for choosing a British national over a migrant? Foreign nationals trying to acquire accommodation will undoubtedly suffer, as proving a breach of the Equality Act 2010 is both difficult and expensive.

landlords being unsure of the process

The Joint Council for the Welfare of Immigrants (JCWI) has conducted an independent evaluation of the Right to Rent scheme and found many landlords find the checks confusing and undertake them incorrectly. The evaluation also found that...”42% of landlords are unlikely to rent to those without British passports. Over 25% would be less likely to rent to someone with a foreign name or foreign accent. These checks are not being undertaken uniformly but are instead directed at certain individuals who appear ‘foreign’. landlords are being forced to discriminate against individuals with the legal right to rent but with unclear or complicated Immigration status, in addition to those who cannot provide documentation immediately. This includes BME tenants, British citizens and those with valid leave to remain.”

Although the Government has published guides on how to manage right to rent checks, landlords are not Border Control Agents and will be expected to run the gauntlet between meeting Government directed checks whilst staying within the bounds of the Equality Act 2010. What are the chances of breaches of the Act being committed? We would hazard a guess and say, “fairly likely”.

It is interesting to note that The Residential landlords Association strongly opposed the introduction of the pilot phase of the tests, arguing that Immigration status checks should be the responsibility of the UK Border Agency and that it placed an unfair burden on landlords who were mostly private individuals with only one or two properties to rent.

The European Convention on Human Rights

Ahead of the second reading of the Immigration Bill 2015, The Equality and Human Rights Commission is reported to have warned MPs ahead of today’s second reading of the Immigration Bill in the House of Commons that the Right To Rent proposals which may ultimately lead to the fast-tracked eviction of illegal immigrants and their children risk breaching Human Rights law.

The Articles of the Convention landlords particularly risk breaching are Article 8, which protects the right to family life and Article 14 which prohibits discrimination. As right to rent checks have to be carried out on all occupants of the house over the age of 18 years, a situation could arise that one member of the family is evicted from the house, causing the break-up of the family unit. Will there be an increase of Human Rights appeals following the introduction of right to rent checks next year? Again, we would say it is "highly likely".

In Summary

It would be naive to think that the right to rent check process will run for long without litigation being brought on the grounds of discrimination and/or Human Rights abuses. In the meantime, tenants should ensure that they are aware of their legal rights to avoid becoming victims of intended or unintended discrimination by landlords.

OTS Solicitors have the experience and expertise to advise tenants applying for accommodation through the right to rent check process. We will ensure that your rights under the Equality Act 2010 and the European Convention of Human Rights are fully protected throughout the procedure.

To talk to us further, please phone our London office on 0207 936 9960 to make an appointment with one of our Immigration law experts.