Will this affect the discrimination that has plagued the ‘right to rent’ policy?
Right to Rent has a chequered history since being introduced to landlords in 2014.
The High Court in 2019 under judicial review held that the policy was discriminatory (before being appealed) and the policy hasn’t been introduced in either Wales or Scotland. However, the procedural rules of the right to rent procedure are set to change this month for EU/EEA/Swiss nationals.
While this may be beneficial for landlords as it will make the procedure easier for nationals out of selected countries, how will this affect nationals from other countries which already suffer discrimination from this policy?
What is ‘right to rent’?
Right to rent is a way to ensure that the tenant can legally rent within the UK.
For UK nationals, this is as simple as showing some identification, such as a passport to prove this. Pre-Brexit, nationals from European Union, EEA & Switzerland would be in a similar position to UK citizens, whereby they would only need to show their passport or national identification card.
However, with Brexit, this was always set to change.
What is the Change?
The EU settlement scheme closed at the end of June 2021, meaning that nationals from EU/EEA/Switzerland who have been given a right to live here are now on a government database.
This means that the process to check the right to rent for people within the EU settlement is now online and can be found here. People who have joined the EU settlement scheme will have been given a share code which they can give to landlords.
In short, this is a procedural change rather than a policy change. Rather than a passport being adequately enough to prove that they have a right to rent, there is a share code instead.
While this may seem like a small procedural change, in truth this may have a significant impact on discrimination that people face.
Why has ‘right to rent’ been seen as discriminatory?
In 2018, the Joint Council for the Welfare of Immigrants (JCWI) started judicial review proceedings against the right to rent regulations arguing that the policy had caused landlords to discriminate against people with foreign accents, foreign names and those without a British passport.
This is because the policy had severe penalties (unlimited fine and up to 5 years in prison) if landlords were found to be renting to those without the right to rent. This led, as you would expect, to landlords taking a low-risk approach and choosing tenants who are unlikely to cause make them liable for fines (ie English speaking or English born nationals).
It is important to note how large an effect the policy had on the private rented sector. The JCWI did a study on this, and while the methodology used has been disputed, the report suggested that 42% of landlords said that the right to rent requirements had made them less likely to consider someone who does not have a British passport, and 27% said they were reluctant to engage with those with foreign accents or names.
The high court originally agreed with the JCWI that the policy was indeed discriminatory and was in violation of article 8 & 14 of the Human Rights Act. However, when appealed the court of appeal held in the favour of the government in April 2020. It is important to note that the UK system does not function like America’s in the sense that over here judges cannot simply void legislation that they believe is discriminatory or goes against a person’s constitutional right.
You can watch a webinar with one of the barristers in the case on the Landlord Law YouTube Channel here.
It is important to say this now: the issue is not discrimination by landlords. It is the policy that is causing this.
A landlords’ job is not to be a quasi-border officer and understand the intricacies of immigration law. Landlords need to ensure that they comply with the regulations, which is a lot easier when choosing ‘lower risk tenants’ who they know has the right to rent.
How will the new policy for EU/EEA/Swiss Nationals affect discrimination?
It is very difficult to predict how this will affect the right to rent policy and if this will cause further discrimination.
The fact that this database exists is sensible and will certainly help both landlords and tenants in providing evidence. However, one issue that could be argued is that while this does make the process easy for landlords in regards to people within the settlement scheme, this does not change or impact the main reason why people think the policy is discriminatory.
For tenants who come across as ‘British’, some landlords may not bother with checking if they have the right to rent (it is not a mandatory check but landlords will incur penalties if they do have someone within their property who is in breach of the policy). However, for the settlement scheme tenants, while this process is easy, they may still face discrimination from landlords who would prefer to reduce the risk of incurring penalties, or who are simply too lazy to check on the database.
Furthermore, while for these two types of tenants, it is relatively straightforward, for tenants who are in neither camp, the process has not changed and they will likely continue to face discrimination.
For people from countries outside of the EU and UK, you still have to provide documents to prove that you do indeed have a visa. This may not seem like a drawn-out process, but compared to British applicants, for example, who just have to show their passport, it is easy to see how discrimination, however unintentional, can occur.
Therefore, although this does not exacerbate the situation further, it does not tackle the main problem of the policy.
What do YOU think?
However, that being said, it will be interesting to hear what landlords think of the right to rent policy and how do they see it.
- Does the policy affect who you consider as tenants?
- Will this database give you the reassurance that you can let out to EU nationals?
Put your answers in the comments box below (although note that comments close after 3 months).