The 65 page Home Office guidance for Landlords on enforcing Right to Rent was updated over Christmas. We explore what the changes mean for landlords and tenants, and discuss the future of the rules that the High Court previously called ‘without reasonable foundation’.
What is Right to Rent?
Right to Rent essentially criminalised letting to an illegal immigrant by making landlords and their agents responsible for checking the immigration status of any incoming tenant, and conducting follow-up checks towards the end of the tenancy.
This was introduced as part of the controversial ‘Hostile Environment’ policy of Theresa May’s Home Office. Landlords were warned in the official guidance provided at the time that they risked prison if they did not properly enforce the regulations. Helpfully, the official guidance also warned them that if they applied the new rules too strictly, they could be found to have discriminated against potential or current tenants, resulting in a hefty fine or worse.
Controversy
Landlords and their agents were therefore placed between a rock and a hard place, carefully navigating the fine line that separated being prosecuted as a slumlord or sued as a racist. The Covid pandemic turbocharged these concerns by adding a new level of personal danger to the mandatory face-to-face ID checks that the Right to Rent regulations demanded.
The government’s response was to release a statement in March 2020 stating that for the period of the pandemic (cut-off date currently April 2022) checks could be completed remotely. In November the official guidance was updated to reflect this, with a proper procedure established and the list of acceptable documents expanded.
Many have argued that the clarity and increased convenience of these newer regulations should have come far sooner – particularly where EU and EEA citizens were concerned. Both tenants and the lettings industry were still getting to grips with the ‘Share Code’ system, and the rules were still somewhat contradictory as what counted as ‘discriminatory’ where EU citizens were concerned.
Legal Battles
All this confusion was not helped by the fact that during March and April 2020, whilst the government was scrambling to re-organise entire economic sectors through the Coronavirus Act, they were also in court fighting their appeal over Right to Rent.
The Home Office had lost at the High Court, with the judgement being handed down that the Right to Rent rules and the Act that empowered them were contrary to the Convention on Human Rights. In the ruling, the High Court Justice essentially accused the Home Office of creating an environment where landlords would have no choice but to discriminate against non-white tenants (even if they were British citizens).
This judgement was in itself very controversial, and on 21st April 2020 the Home Office successfully overturned many of the original finding on appeal. Interestingly ‘many’ does not mean ‘all’ and the Court of Appeal did find that the regulations had caused some landlords to discriminate against foreigners out of ‘administrative convenience’ and ‘fear’.
Despite this slight embarrassment the Home Office was found to be acting in a logical way to reduce illegal immigration and not in a way that actively targeted minority races.
Consultations and Revisions
Two separate court rulings confirming that the government is
promoting some level of racial discrimination was hardly an unalloyed success.
As a consequence there is now a consultation on changes to the regulations, and
how they are being enforced.
In order to placate and pre-empt some of the disquiet the regulations have caused in the letting sector, the government has made changes to the Right to Rent Guide for Landlords and Letting Agents. This is hardly surprising, some of these changes have been requested several times over the last year, and it hardly makes sense for the Home Office to open a dialogue without first extending an olive branch.
So what do the changes mean for Landlords?
The first key improvement is the extension (to the previously mentioned April 2022 deadline), which will help reduce the risk from Omicron. The second change is that Settled Status applications will now be allowed as proof of Right to Rent, even if they are not yet accepted (the application has to be made before 1 July).
These changes offer hope to landlords that the government is aware of the regulatory burden they have heaped on Landlords and Agents, and may even be ready to listen to the sector’s ideas on how to better police renting in a post-Brexit UK.
