Right to rent – is it legal?

We are tempted to feel sorry for Prime Minister Theresa May. In the course of her Brexit struggles she is clearly experiencing a “hostile environment” in Parliament and she is finding it very difficult to persuade and cajole unwilling parliamentarians.

But a few years ago, when she was Home Secretary, the boot was on the other foot and it was she who was creating such a hostile environment. Under her watch Parliament passed various items of legislation to make life difficult for irregular migrants – ie those who do not hold legal status.

Such migrants now find it difficult or impossible to hold a UK bank account, to hold a UK driving licence, or to rent in the private sector. This last measure – introduced by the Immigration Act 2014 and colloquially referred to as “the right to rent” – has now come under legal human rights challenge.

The legislation currently only applies in England but the Government intends to extend it to the whole of the UK. The Joint Council for the Welfare of Immigrants (JCWI) has applied for and been granted a judicial review of the relevant legislation in the High Court, which has recently published its decision. The JCWI says that the legislation is, in its effect, racially discriminatory and it does not really work very well anyway.

It is not only organisations such as the JCWI which are upset. Private landlords, represented by the Residential Landlords Association (RLA), are also unhappy, but their complaint is a rather different one. The legislation forces landlords to make careful checks on prospective tenants to ensure that they are in the UK legally. If they are not, and if the landlord does rent property to them, then the landlord is likely to be on the wrong side of the law and they can be fined or, in an extreme case, even imprisoned.

In most instances, as far as we know at any rate, landlords are not experts on immigration law. But some parts of immigration law are easier to understand than others. If somebody produces a British passport then it is pretty safe to say that they have legal status in the UK. On a slightly different but connected note, if somebody produces a cleverly-forged British passport, a landlord can hardly be expected to possess the sophisticated equipment necessary to detect the forgery.

Taking things one step further, if somebody produces a passport from an EEA country or Switzerland this shows that they have legal status.

But beyond that things become a lot more complicated. Some migrants may have vignettes stuck in their passport and others may have small plastic biometric residence cards. These may not always be easy to interpret, even for immigration lawyers, and having to do so is taking landlords far outside their normal territory.

A moment’s thought can throw up some interesting scenarios: a person holds an EEA family permit, which is on the point on expiry. Does this mean that they are on the point of becoming an illegal migrant? Another person holds a spouse visa but they have just told you that the relationship has broken up. Are they here legally or illegally? These are questions that immigration lawyers are used to, but not landlords.

Both the JCWI and the RLA made representations to the High Court about this. It is a commonsense reality that landlords – scared of breaking the law and dire consequences – are much more likely to accept prospective tenants who can produce a passport from an acceptable country than those who produce something different and more complicated. Thus landlords are likely to racially discriminate even if that is not their particular intention.

The court showed itself to be sympathetic to this. The court accepted – as indeed it must – that Government and Parliament are entitled to have legislation on the books which is aimed at curbing irregular immigration. But, on the other hand, the danger of racial discrimination is a very serious one, and this particular legislation too easily promotes it. The balance was not right. And maybe the legislation is not very effective in any case.

However, under human rights law, the High Court can only go so far. Differently from the situation with Immigration Rules, the court cannot strike down Acts of Parliament, or parts of Acts of Parliament, which it finds to be unlawful. The strongest sanction it can provide is a “declaration of incompatibility” – ie that the legislation is not in its view compatible with human rights law. However, this is likely to have a very powerful political effect.

The court duly issued a declaration that the relevant parts of the legislation infringed the European Convention on Human Rights, specifically Article 8 (respect for family and private life) and Article 14 (unlawful discrimination). The court also, separately, said that the Government could not extend the scheme to the rest of the UK without further evaluation.

The Government is going to appeal to the Court of Appeal, and we will see what happens. But there is a real possibility that Government and Parliament will ultimately have to amend the legislation.

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