The Government has recently published new measures to clamp down on illegal immigration.  Landlords in England will be expected to both carry out “right to rent” checks on each tenant’s immigration status before allowing them to move in and also to evict tenants who lose the right to live in the United Kingdom.  This announcement follows a pilot scheme which has been running for a year in the West Midlands.  Any repeated failure with regard to checking immigration status will be an offence carrying maximum penalties of a fine or up to five years imprisonment.

Unsurprisingly, this has caused concern both for those representing migrants and indeed landlords.  The Chief Executive of the joint Council for the Welfare of Immigrants suggested “we have heard that British people with foreign accents finding it difficult to get tenancies from some of the, you might say, unscrupulous landlords”. The Residential Landlord’s Association has pointed to evidence of “document discrimination” with some landlords reluctant to rent their properties to anyone who could not produce a valid passport.  As both employment lawyers and HR professionals well know, checking documents is to assess someone’s immigration status and whether they have a work permit is nothing new.  It has been a criminal offence for an employer to engage someone who is subject to immigration control and not legally entitled to work since 1997.  This can be a difficult area because of conflicting obligations.  Employers must balance their statutory responsibility carrying out these checks with a need to avoid unlawful discrimination on the grounds of race.

To see how things can go wrong, you do not need to look very far. In 2009, a large law firm advertised training contracts online, informing candidates that they were unable to accept applications from those who require a work permit to take up employment in the United Kingdom.  Even though there was Government guidance that work permits were unlikely to be granted for trainee solicitors this was held to involve indirect discrimination on the grounds of nationality. The claim by an Indian graduate succeeded before both the Employment Tribunal and the Employment Appeal Tribunal.

Landlords and lettings are covered by the same legislation.  Under the Equality Act 2010, it is unlawful for businesses to refuse to provide a service based upon race, colour, ethnic or national origin.  Tempting though it may be for landlords to side-step the entire issue by refusing to have any dealings whatsoever with migrants, they run the risk of incurring civil liability under the discrimination legislation.  A blanket ban on lettings to migrants is likely to involve indirect discrimination and because there is a means of managing the risks under the immigration legislation, it is unlikely that such discrimination could ever be justified. Furthermore, any refusal without checking documents may well give rise to an allegation of direct discrimination on the same grounds.

Although lettings and rentals are one of the growing sectors in the UK currently, a landlord will have a difficult time understanding and managing these risks. This type of liability is not new however and valuable lessons and considerable insight can be gained from employers, HR professionals and employment lawyers, who are more familiar with this difficult area of law.

However understandable the response of interested organisations and groups may be, the solutions currently proposed may work as far as the immigration legislation is concerned but open up a whole new front under the equality legislation.