The Right to Rent is Likely to Remain Part of any Future Immigration Regime

16th July 2020 Commercial Litigation

The Home Office recently published its further statement on what the UK’s immigration system will look like after Brexit. Not being an immigration lawyer I am not going to go into the details of this!

However, the statement did make some passing references to the Right to Rent. Quite early in the document there is a reference to the already existing online service for proving the right to work. It goes on to say that a “similar online right to rent service, which most individuals will be able to use, is planned for later this year, making right to rent checks easier for landlords.” This system has been in testing for some time and is clearly still planned.

The key point about this comment though is that the Home Office clearly envisages the Right to Rent regime continuing to operate under a new points-based system. They are also fairly clearly going to push the use of an online service for landlords going forward.

An online service would make the process for landlords much easier. The test system works by the potential tenant generating a secure link which is useable for a limited time only to their page on the Home Office’s systems. This page contains a photograph and some basic information about themselves along with a clear statement as to their right to rent and its scope. In essence this would mean that checks would be done by looking at the page, confirming a right to rent exists, and then cross-checking the individual’s passport or other ID to make sure they are who they say they are. Arguably, a system like this should in fact have been implemented from the outset but it would not have been applicable to EEA nationals so might not have been all that useful.

However, there will remain issues. The online service is not going to cover everyone. The Home Office themselves say it will cover “most individuals”. This does not give confidence. The problems of Windrush and other similar immigration issues are all about those groups who are not “most individuals” and who fall outside the main structures of immigration and nationality. Many of those people will also be renting in the private sector. If a simple online right to rent scheme is not going to cover everyone there is a very real risk that people who are not covered by the simpler process will face discrimination. This was the entire basis of the JCWI challenge to the original Right to Rent scheme and the ruling of the Administrative Court that it was unlawful.

The future of Right to Rent is by no means guaranteed of course. While the Administrative Court held that the scheme was unlawful as it created discrimination the Court of Appeal has overturned that decision. Permission to appeal to the Supreme Court has been sought but has yet to be granted. Therefore it remains possible that the Supreme Court will restore the original decision of the Administrative Court and rule the scheme unlawful without substantial alteration.

Landlords in England will however need to deal with the Right to Rent for the foreseeable future and it seems, if the Home Office has its way, that it will remain a feature of the rented sector over the longer term.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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