Right to rent: The impact of the Immigration Act 2016 on migrants with lawful status

The Immigration Act 2014 made it compulsory for private landlords to check the immigration status of all new adult tenants, sub-tenants and lodgers in order to assess whether they have a ‘Right to Rent’ in the UK. The Act also introduced civil penalties for landlords and letting agents for renting out property to individuals who are not qualified to rent property in the UK. The Immigration Act 2016 (“The Act”) builds on the foundations laid by the Immigration Act 2014 and gives further force to the ‘Right to Rent’ scheme.

Section 21 of the 2014 Act defines those who are disqualified from having a right to rent residential property — in general terms, those people with no lawful immigration status. Qualification is made by section 21(4) that defines those with a “limited right to rent”, such as persons with a limited leave to enter or remain in the UK (such as someone on a short work permit or student visa) and those who have a right to enter or remain by virtue of an enforceable EU right (such as non-EU national family members of an EU national) or of any provision made under section 2(2) of the European Communities Act 1972.

The Immigration Act 2014 was targeted at creating obstacles for migrants with no lawful immigration status. However, a Joint Council for the Welfare of Immigrants’ (JCWI) study found that despite the fact that two codes of practice have been issued for landlords: a Code of Practice on ‘Illegal Migration and the Private Rented Sector’ and another on ‘Avoiding Unlawful Discrimination’, 42% of landlords said that the ‘Right to Rent Scheme’ requirements had made them less likely to consider someone who did not have a British passport.

Furthermore, according to the study, 27% of landlords said that they felt reluctant to engage with those with foreign accents or names. The JCWI’s research also suggested that checks were not being undertaken uniformly on all tenants, but were instead bring directed at individuals who appeared “foreign”.

The Home Office’s Evaluation of the Right to Rent Scheme, confirmed that following the implementation of the ‘Right to Rent Scheme’ there were instances of less favourable treatment being afforded by landlords to those perceived to be “foreign”, regardless of their actual immigration status.

The Immigration Act 2016 (“The Act”) builds on the foundations laid by the Immigration Act 2014 with Sections 39-42 on residential tenancies giving further force to the ‘Right to Rent’ scheme.

Under Section 39 of the Act the landlord under a residential tenancy agreement which relates to premises in England commits an offence if:

• The premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement; and
• The landlord knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement.

The mental element of the offence, namely, “having reasonable cause to believe”, arguably further increases the potential for misconceptions against migrants in general, as outlined above. For example, whilst a subjective perception that someone is “foreign” by virtue of their accent and therefore “disqualified from having a right to rent” would not, amount to a reasonable cause to believe that they are disqualified from renting in law, it may well have practical consequences for anyone who happens to possess relevant “foreign” characteristics in that they would be disadvantaged in terms of accessing the property market.

When interpreted by Immigration Officers and those with a legal background, section 39 of the 2016 Act may well trigger analysis of various immigration-law related factors, however, it may not be the case with all lay landlords.

The scope for a potential abuse in misapplying the test of a “reasonable cause to believe” depends, to some degree, on the interpretation of a “reasonable cause” test.

In Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49, in the context of a different statutory regime, namely Section 40 of the Immigration and Asylum Act 1999, the Supreme Court found that aircraft staff cannot be expected to be able to identify false documents in the same manner as Immigration Border Officers. In the above case, the Secretary of State sought a charge from the aircraft company who transferred two Albanian nationals to Edinburgh, having checked their false Greek passports without detecting the fraud.

Under Section 40 of the 1999 Act the aircraft owner was entitled to treat the passengers’ passports to be what these documents purported to be unless their falsity was “reasonably apparent”.

The absence of certain security features such as incorrect position of the Greek flag in one of the passports was argued by the Secretary of State to be a “reasonably apparent” defect.

By way of comparison, if a similar standard is to be adopted under the “reasonable cause test” under section 39 of the 2016 Act, the landlord presented with a false passport could be held liable for failing to determine the falsity of the document. The practical consequences of such a failure could then lead to the landlord facing an unlimited fine and or 5 years’ imprisonment.

Criminal liability, that comes with no requirement for actual knowledge, could result in less landlords willing to take the risk in renting out to someone they subjectively perceive to be “foreign”.

According to the TUC’s Action Plan on Challenging Racism and Xenophobia, post-Brexit Britain has faced a spike in racism not limited to European migrants, but also directed towards non-EU migrant groups and British-born BME people. For example, the National Police Chiefs’ Council reported a 57 per cent increase in hate crime in the days following the referendum. In the first two weeks of July 2016, there were 3001 hate crimes and incidents reported which represents a 20% increase on the equivalent period in 2015. The findings of the TUC are that Brexit itself resulted in a toxic environment for EU and non-EU migrants, with there being reported instances of harassment.

The implications of the “Right to Rent Scheme”, powered by imposition of criminal liability under the 2016 Act, in the context of a post-Brexit rise in racism, may have far-reaching practical consequences for those perceived to be “foreign”, seeing them disadvantaged despite having lawful status or even British Citizenship.

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