Are right to rent checks a breach of human rights?

The Court of Appeal rule that the Right to Rent Scheme is not incompatible with the European Convention on Human Rights.

What is the Right to Rent Scheme?

Under the Immigration Act 2016 ("IA"), from 1 February 2016, landlords have been required to carry out rent checks on prospective tenants to ensure that they have the right to be resident in the UK (the "Scheme'). A failure to comply could leave a landlord guilty of a criminal offence and be fined up to £3,000. These requirements do not apply to tenancies that were granted before 1 February 2016 (or renewals of these tenancies)

Does Human Rights law make the Scheme unlawful?

The decision in R (Joint Council for Welfare of Immigrants) v Secretary of State for Home Department [2020] EWCA Civ 542 (21 April 2020)[1]

Before the IA was introduced, many immigrant support groups criticised the Scheme as discriminatory; this did not however, prevent the government from passing the IA.

In 2019, an immigrant welfare charity applied for a legal review of the Scheme on the basis that it was incompatible with the following rights under the European Convention on Human Rights ("ECHR"):

• Article 8.1: Everyone has the right to respect for his private and family life, his home and his correspondence.
• Article 8.2: There shall be no interference of this right by a public authority except where it is necessary for  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 protection of the rights and freedoms of others.
• Article 14: The enjoyment of the rights and freedoms above are to be secured without discrimination due to sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The initial decision in the High Court ruled in favour of the charity. It was ruled that Article 8 read in conjunction with Article 14 made the Scheme discriminatory as people born in a country other than the UK were finding it more difficult to rent homes.

The decision was appealed. The Court of Appeal found that the ruling of the High Court did not prove discrimination in all possible cases where the Scheme was used. The Court of Appeal therefore overturned the decision given by the High Court which rules that the Scheme was unlawful.  

The Court of Appeal found that although discrimination could be caused by the application of the scheme, this did not mean that the Scheme could not be used in a fair and proportionate way and therefore it was not incompatible with the ECHR.  The reasoning for this was largely due to the fact that the case in question challenged the Scheme itself and was not a challenge against a specific decision that had been made against a particular individual. To rule on the legality of the Scheme itself, the Court had to consider whether the breach was proportionate to the likely benefit of the Scheme and whether a fair balance had been struck between the rights of the individual and the interests of the community. The Court of Appeal were of the opinion that it was possible to apply the scheme with this balance.

Potential future developments of the case

It is expected that the charity will appeal this decision to the Supreme Court, so there is some chance that the Court of Appeal will be found to have made the incorrect decision. In addition to this potential appeal, this particular case was limited because the challenge was being brought to the Scheme itself – which means that the courts must make an assessment of every possible outcome of its application. The ruling that this Scheme is not unlawful in a general sense, does not mean that the specific application of the Scheme cannot be challenged by or on behalf of an individual. Such challenge could be brought as a result of an individual's experience of being discriminated against; for example, not being accepted as a tenant due to not holding a British passport.  It is likely that this would be discriminatory where it can be proved that this decision was made as a result of a persons nationality (or perceived nationality). Where a tenant treated in this way obtains a judgement that application in this way is discriminatory, this may outlaw all actions of this type by the landlord. The issue that arises here is that this challenge can only be brought by an individual who has the necessary funds to do so.

In order to ensure operation in a fair and non-discriminatory way, the Home Office has published Code of Practice for Landlords: Avoiding unlawful discrimination when conducting "right to rent" checks in the private rented residential sector, to which the court made reference in its judgment.