Some months ago, we wrote an article on the JCWI’s letter to the Secretary of State challenging he decision to roll out the Right to Rent (RtR) scheme to Northen Ireland, Wales and Scotland. The JCWI has now been given permission to judicially review the Secretary of State’s decision. Our previous post can be read here.
The RtR scheme places a positive obligation on landlords to ensure that they carry out immigration checks on tenants or occupiers prior to entering into any tenancy agreement. Under the RtR scheme landlords can only rent to people who have the right to rent and these checks are there to protect landlords from the possibility of prosecution.
It is the fear of prosecution which has made landlords reluctant to rent to any person that does not have a UK or EU passport. That means that even British Citizens who do not have UK passports are reportedly having problems renting because of the RtR scheme and the landlord’s fear of prosecution.
At present the RtR scheme only applies to England however, the government has stated that it plans to roll it out to Northern Ireland, Wales and Scotland. The JCWI has now succeeded in its claim to Judicially Review the entire RtR scheme on the basis that it discriminates against foreign nationals and those without a British passport.
Unfortunately, we do not have complete details of the argument put before the court however, below is a summary of what we understand was argued before the High Court.
The JCWI acknowledges that the RtR scheme does not directly discriminate against any class of persons. However, it does discriminate indirectly because the system is set up in such a way as to make it difficult for landlords to check whether someone has the right to rent and it creates sanctions and penalties where the landlord makes the wrong decision.
This fear of prosecution and sanctions means that landlords are taking the easy route and letting to tenants who are British and can prove they are with the aid of a passport. We have mentioned the research carried out by the JCWI in our previous post, and it is the findings of this research which the JCWI rely on when putting their arguments before the court. They argue that the evidence shows that the discrimination is significant against those that are not British Nationals or those that do not hold a British passport. In essence the RtR scheme doesn’t require landlords to discriminate, but by its very nature the scheme is such that landlords are in fact discriminating against many prospective tenants and occupiers.
With this judicial review the JCWI are hoping that the Secretary of State will carry out a review of the RtR scheme prior to rolling it out to the devolved nations. If this review, then concludes that indirect discrimination is prevalent within the scheme then it is contrary to the provisions of the Equality Act 2010 and the Code of Practice produced under the legislation.