Right to Rent has been branded a “farce” after a second court ruling which suggests that agents and landlords following Home Office protocol could be exposed to accusations that they have breached human rights.
Under Right to Rent, landlords or their agents must check the immigration status of all prospective tenants.
This regime, where penalties are significant and include civil fines and criminal sanctions such as prison, is now under significant challenge.
In the first case, due to be appealed by the Government, it was ruled that the scheme breached the European Convention on Human Rights.
The Judge said that it encouraged landlords to discriminate when they would not otherwise have done.
In the newer ruling, the Residential Landlords Association says that the High Court’s decision means that any agent or landlord seeking to repossess a property where the Home Office says that the tenant does not have the Right to Rent, could themselves breach equality law.
The case was heard by the same Judge, Mr Justice Martin Spencer, who earlier ruled that Right to Rent is intrinsically a breach of human rights.
Where the Home Office identifies a tenant without the right to rent, it issues a formal notice to the agent or landlord who then uses this as the basis to repossess the property.
In the R (Goloshvili) v Secretary of State  EWHC 614 (Admin) case, the landlord followed procedure.
The landlord suspected that the tenant did not have the Right to Rent, contacted the Home Office helpline, and was duly issued with a Notice of Letting to a Disqualified Person (NLDP).
The landlord was warned: “You could face an unlimited fine or be sent to prison for up to five years.”
The landlord then served a notice for possession.
However, the High Court has now ruled that an NLDP breaches the Equality Act on the basis that it amounts to “direct discrimination on the basis of nationality . . . and race”.
The RLA says that this means that agents and landlords who do as directed by the Home Office are now themselves open to breaching equality law – and do not have the exemption that the court has ruled that the Secretary of State has, in a victory for the Government.
The RLA has now written to the Home Office to seek urgent changes to address what it says is a farcical situation, with agents and landlords placed in an invidious position.
The letter, to minister Caroline Nokes, says: “We consider that urgent legislative reform is needed in order to ensure that landlords are provided with a complete exception from the Equality Act 2010 where they act in response to the service of a Notice of Letting to a Disqualified Person.”
David Smith, policy director for the RLA, said: “This new ruling makes Right to Rent a farce. To put landlords in a position where acting on a direct instruction provided by the Home Office leaves them open to breaching equality law cannot be tolerated.
“With the High Court having ruled that discrimination is baked into the Right to Rent scheme, it is time for the policy to be scrapped altogether.”
Smith told EYE that agents acting on behalf of landlords are equally at risk if they try to repossess properties on the instruction of the Home Office.
Agents and landlords must continue to carry out Right to Rent checks, as the regime is still in place.
A full transcript of the judgement in the R (Goloshvili) v Secretary of State  EWHC 614 (Admin) case is here: