The Right to Rent Scheme has created hassle and inconvenience for landlords and tenants generally, but studies have shown that its most severe impact has been on BME, non-British and non-European people who are trying to find rented accommodation. While the Joint Council for the Welfare of Immigrants (“JCWI”) and others have accused the scheme of having discriminatory impact on people in those groups, the Government took steps in 2017 to expand the scheme as it developed its ‘hostile environment’ policy.

The Independent Chief Inspector of Borders and Immigration published a report in March which was critical of the Home Office’s implementation of the scheme. One of the recommendations made that the Home Office should develop and make public plans for the monitoring and evaluation of the Right to Rent measures including the impact of the measures on racial and other discrimination. The Home Office response did not specifically address the question of discrimination and it appeared that the Government was not interested in looking closer at the knock-on effects of Right to Rent.

The recent focus on the status of the so called ‘Windrush generation’ may bring renewed attention to the discriminatory effect of Right to Rent. Named after the MV Empire Windrush, one of the many ships which brought people from Caribbean countries to the UK between 1948 and 1971, the Windrush generation are the group of Commonwealth citizens travelled lawfully to the UK. This group was granted indefinite leave to remain in the UK by the Immigration Act 1971, but many do not have any documentation to prove this. The immigration status of such people is further complicated by the fact that many emigrated from countries which were not independent from the UK at the time – and they were already British Citizens before they arrived.

Many in the Windrush generation who are entitled to live and work in the UK have struggled to prove this to the Home Office’s satisfaction. The Right to Rent scheme creates a further problem – how can someone demonstrate their right to rent property in England if they do not have the sorts of documents which the Right to Rent scheme requires?

The Right to Rent scheme does not require tenants to provide a UK passport, a biometric residence permit or a naturalisation certificate; other documents such as driving licences are acceptable in combination to prove someone has an unlimited Right to Rent. However, even if someone produces these documents, unless the landlord has a good understanding of how Right to Rent works, they may not realise that the documents provided are sufficient. It is inevitable that many BME people looking for a home in the private rented sector will be subject to discrimination when looking to rent property. As a society we may have moved on from ‘No black, no dogs, no Irish’, but the evidence collected by the JWCI and the RLA suggested that Right to Rent has introduced new forms of discrimination.

Landlords might ask for some sympathy here – if the Home Office cannot get it right, can they really be expected to understand the nuances of immigration and nationality law? It is not surprising that, as a survey by the RLA found, many landlords are taking an unlawful and discriminator ‘play it safe’ approach and are reluctant to let property to someone without a British passport.

The alleged structural discriminatory effect of the Right to Rent scheme will be considered in two pending judicial review claims against the Home Office, and the Government may now be forced to reconsider its ‘hostile environment’ approach entirely. Anthony Gold Solicitors are instructed to intervene in both these cases for an interested party.

While the Right to Rent scheme remain in place landlords and agents must consider carefully whether they have sufficient systems in place to prevent discriminatory practises.