The Law on “Right to Rent” in the UK

Posted onMarch 31, 2020

By Stephen Slater, Senior Lawyer at OTS Solicitors

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At a time when the newspapers are full of reports of people being asked to leave their rental accommodation because of the coronavirus and fear of people coming from overseas, the landlord and tenant team at OTS Solicitors thought we should look at the topic of the law on the right to rent.

Landlord and tenant solicitors

If you need legal advice about any aspect of landlord and tenant law or personal immigration law then the landlord and tenant and personal Immigration law teams at OTS Solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry form to arrange an appointment via our online platform, skype or telephone conferencing.

The right to rent legislation

The right to rent relates to the immigration status of an individual. Under the right to rent provisions:

- certain people do not have a right to rent, or live in, private residential accommodation as their only or main home

- in order to avoid sanctions, landlords affected by the provisions must check that any adult occupier of residential accommodation they let out has a right to rent, and continues to have a right to rent

- (From 1 December 2016) an occupier with no right to rent can be evicted without a court order in specified circumstances.

Depending on their immigration status and which type of leave to enter or remain in the UK they have, people can have:

- an unlimited right to rent

- a time-limited right to rent

- no right to rent.

A person has an unlimited right to rent if s/he is:

- a British citizen

- an EU or EEA national

EEA nationals enjoy a statutory exemption from the right to rent legalisation as EEA and Swiss nationals are ‘relevant nationals’ as defined in s.21(5) of the Immigration Act 2014, and so cannot be disqualified from occupying premises under a residential tenancy agreement under s.21(1) of the same Act.

A partner of an EEA national living in a relationship akin to a marriage is also covered for example a third country national who has made an application as an EEA extended family member under the EEA regulations. Section 21(4) of the Immigration Act 2014 makes specific reference to a person with a “limited right to rent” which are references to—

a) a person who has been granted leave to enter or remain in the United Kingdom for a limited period, or

b) a person who—

(i) is not a relevant national, and

(ii) is entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.

The EEA Regulations 20196 (as amended) are the statutory expression in UK of the enforceable EU rights referred to in s.21.4 (b) (ii) of the 2014 Act.

- a Swiss national

- a Commonwealth Citizen with right of abode in the UK

- a person with indefinite leave to remain in the UK.

The Home Office may also grant a discretionary right to rent. A person has an unlimited right to rent if s/he is:

- has been granted leave to enter or remain in the UK for a limited period – this applies regardless of the reason for granting the leave and so includes those granted humanitarian protection, discretionary leave to remain, a study/work/family visa

- is a non-EEA national exercising an EEA treaty right – this includes family members of EEA workers and Zambrano carers

- has been granted a time-limited permission to rent by the Home Office. The Home Office may grant this permission, for example, to a person with an outstanding asylum or Article 3 European Convention on Human Rights claim, or an appeal against a refusal of such a claim. Detailed information about who can be granted permission to rent is in the Home Office Short guide on right to rent published in July 2019 which says:

When will a tenant have permission to rent?

The circumstances in which permission to rent is granted are very limited as we expect those without the right to be in the UK to leave the country voluntarily. The Home Office can assist individuals with this through its voluntary departure scheme.

Permission to rent will normally be granted where the following circumstances apply:

- Individuals with an outstanding protection claim, Article 3 ECHR medical claim, or an outstanding appeal against the refusal of such a claim.

- Individuals who have lodged further submissions against the refusal of a protection claim and the submissions have been outstanding for more than five working days.

- Individuals who have an appeal outstanding which cannot be pursued from abroad.

- Individuals whose judicial review application has been given permission to proceed and where the judicial review would as a matter of policy be treated as being suspensive of removal. This would continue until any reconsideration required of the Home Office as an outcome of the judicial review had been undertaken.

- Individuals who have been granted bail by an immigration tribunal or the courts which contains a residence restriction and/or electronic monitoring restrictions.

- Potential victims of modern slavery from the date of a positive reasonable grounds decision from the National Referral Mechanism up until two weeks after either a positive or negative conclusive grounds decision.

- Recognised victims of modern slavery with an associated outstanding application for discretionary leave.

- Families with one or more children under the age of 18 who are cooperating with the Home Office’s Family Returns Process.

- Individuals who are complying with the Home Office’s voluntary departure process. This includes those with genuine obstacles to return, providing that they are taking all reasonable steps to address these.

If an individual does not meet the above criteria, the Home Office may consider granting permission to rent in exceptionally limited circumstances for the following reasons:

1. It would allow the Home Office to better progress a migrant’s case if they were allowed permission to rent.

2. The migrant is considered to be a vulnerable person or unable to make their own decisions.

3. In order to avoid a breach of human rights.

Article 8, Human Rights and the right to rent

On 17 September 2015, the Home Office produced a memorandum seeking to justify the Right to Rent Scheme under the ECHR. The memorandum referred at page 9 to clause 13 of the Immigration Bill dealing with eviction and permitting a private sector landlord of a private residential tenancy to seek possession of a property without court process. The memorandum appeared to recognise that this provision engaged Articles 3, 6, 8, 14 and Article 1 of protocol 1 to the Convention. Similarly, clause 14 dealing with orders for possession of dwelling houses, was recognised to engage Articles 3, 8, 14 and A1 P1, the memorandum stating:

"In terms of Article 14, the Department once again considers that a similar analysis applies: for the reasons summarised above it is also satisfied that the differential treatment serves the legitimate aim of Immigration control and is proportionate to the aims being pursued, given the wide margin of appreciation available in cases where differential treatment is based on Immigration status."

Article 8 ECHR provides:

"1. Everyone has the right to "respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the provision of the rights and freedoms of others."

Whilst it much be accepted that Article 8 does not give a right to a home: see Chapman v UK (2001) EHRR 18 at paragraph 99 where the Grand Chamber said:

"It is important to recall that Article 8 does not in terms recognise a right to be provided with a home. Nor does the jurisprudence of the Court acknowledge such a right ….

However, it is the case that:

"103. Even though there is no right to a home, these facts plainly fall within the ambit of the right to respect for private and family life, and to the home. Article [8] is therefore engaged."

There is authority set out at paragraph 10 of the Ghaidan v Godin-Mendoza [2004] 2 AC 557that the right to rent falls within the ambit of the Convention:

"105. The application of article 14 does not presuppose a violation of one of the substantive rights guaranteed by the Convention. It is necessary but also sufficient for the facts of the case to fall within the ambit of one or more of the Convention articles. They will so fall whenever the subject matter of the disadvantage is a "positive modality" of the exercise of a right guaranteed or whenever the measures complained of are "linked" to the exercise of a right guaranteed.

106. It is not necessary for there to be even an interference with a substantive right in order to establish a 'link' and in a positive modality case no adverse impact is necessary beyond the denial of the benefit conferred by the measure in question. All that is required is that the connection between the facts and a core value of the substantive right must be more than merely tenuous.

107. Therefore, although there is no right to a home under the Convention a provision which restricted succession rights for tenants of private landlords fell within the ambit of Article 8. Similarly, restrictions on housing assistance or cash benefits used to defray housing costs have consistently been found to have more than a tenuous connection to the right to respect for family and private life under Article 8.

108. On any view the facts in this claim have more than a tenuous connection with family and private life as well as respect for the home. The Defendant's attempt to distinguish between matters affecting peoples' "actual homes" and their access to housing generally ("potential future homes") is not borne out by the authorities, derived from established principle or even reflected in the type of discrimination in issue (which may impact on both). It should be rejected accordingly.

109. Therefore, as the facts in this claim are plainly connected to the core values of Article 8 it is immaterial whether the Scheme is properly described as a "modality", viz. the grant or removal of the right to rent a home."

To prevent someone from acquiring a home interferes with that person's Article 8 rights. Thus, Article 8 is directly engaged. The Government tacitly accepted and acknowledgment that Article 8 is engaged in its memorandum of October 2013: see paragraph 5 above.

There is further authority from a line of decisions for the same proposition:

R (Countryside Alliance and others) v Attorney General and another [2008] 1 AC 719 at paragraph 10 where Lord Bingham said, referring to Article 8:

"The content of this right has been described as "elusive" and does not lend itself to exhaustive definition. This may help to explain why the right is expressed as one to respect, as contrasted with the more categorical language used in other articles. But the purpose of the Article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose."

ii) A-MV v Finland (2018) 66 E.H.R.R. 22 at paragraph 76 where the ECtHR said:

"Article 8 "secure[s] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality". Article 8 concerns rights of central importance to the individual's identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community.

iii) Bah v United Kingdom (2012) 54 EHRR 21 where the Applicant, a national of Sierra Leone, relying on Article14 in conjunction with Article8, claimed that she had been discriminated against by not being given priority for social housing. The judgment of the ECtHR included the following:

35. The Court recalls that Article14 complements the other substantive provisions of the Convention and the Protocols, but has no independent existence since it applies solely in relation to the "enjoyment of the rights and freedoms" safeguarded by those provisions. The application of Article14 does not necessarily presuppose the violation of one of the substantive Convention rights. It is sufficient—and also necessary—for the facts of the case to fall "within the ambit" of one or more of the Convention articles. The prohibition of discrimination in Article14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the Contracting State has voluntarily decided to provide. This principle is well entrenched in the Court's case law. It was expressed for the first time in the Belgian Linguistic case.

…

37. The scope of [the margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment] will vary according to the circumstances, the subject matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality or sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the contracting state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation".

…

40. Having thus defined the scope of its examination, the Court begins by observing that there is no right under Article8 of the Convention to be provided with housing. However, as the Court has previously held with regard to other social benefits, where a contracting state decides to provide such benefits, it must do so in a way that is compliant with Article14. The impugned legislation in this case obviously affected the home and family life of the applicant and her son, as it impacted upon their eligibility for assistance in finding accommodation when they were threatened with homelessness. The Court therefore finds that the facts of this case fall within the ambit of Article8. In so finding, the Court notes the conclusion of the Court of Appeal at [25] of R. (Morris) v Westminster City Council and further notes the fact that the Government agrees that Article8 applies to the instant case. The Court must therefore go on to consider whether the applicant was impermissibly discriminated against within the meaning of Article 14."

8. It is beyond peradventure that an EEA national qualifies as a ‘relevant national’ as defined in s.21(5) of the Immigration Act 2014, and so cannot be disqualified from occupying premises under a residential tenancy agreement under s.21(1) of the same Act.

9. An EEA family member living in a relationship akin to a marriage who has made an application as an EEA extended family member under the EEA regulations is similarly protected. Section 21(4) of the Immigration Act 2014 makes specific reference to a person with a “limited right to rent” which are references to—

a) a person who has been granted leave to enter or remain in the United Kingdom for a limited period, or

b) a person who—

(iii) is not a relevant national, and

(iv) is entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.

The EEA Regulations 20196 (as amended) are the statutory expression in UK of the enforceable EU rights referred to in s.21.4 (b) (ii) of the 2014 Act.

If an Article 8 right to family and private life is frustrated by a right to rent decision which would compel them to live apart during a global health pandemic which would make that person vulnerable people within the meaning quoted in the Secretary of States guidance Home Office Short guide on right to rent.

OTS Solicitors would like to hear from anyone who experience of right to rent checks during the COVID-19 outbreak in order to inform our submission to Immigration organisations and to the Home Affairs Committee investigation into Home Office conduct during the Covid 19 outbreak.

Landlord and tenant solicitors

If you need legal advice about any aspect of landlord and tenant law or personal immigration law then the landlord and tenant and personal immigration law teams at OTS Solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry form to arrange an appointment via our online platform, skype or telephone conferencing

COVID-19 update: