The Right to Rent scheme requires landlords of residential premises to check the immigration status of prospective tenants (and any other occupiers) to establish that they have the right to remain in the UK; it has remained a controversial initiative since it came into force in England in February 2016. The scheme aims to prevent illegal immigrants from accessing the private rental sector, but has been widely criticised as seeking to turn private landlords into unwilling and untrained border police, and for causing racial discrimination.

However, the Court of Appeal has now ruled that the scheme is not incompatible with the European Convention on Human Rights (ECHR) and is capable of being operated by landlords in a way that is proportionate in all cases. 

The decisions

A legal challenge was made by the Joint Council for the Welfare of Immigrants (JCWI) as to the lawfulness of the scheme with the High Court finding earlier this year that the scheme was:

• discriminatory
• in breach of articles 8 and 4 of the ECHR (enjoyment of rights without discrimination and the right to respect for private and family life), and
• causing landlords to discriminate against potential tenants because of their nationality and ethnicity. 

The UK government appealed successfully against the High Court's ruling. Although the Court of Appeal found that the scheme did increase the risk of discrimination against those without a UK passport to some extent, it allowed the appeal. The Court described the scheme as "justified" and "a proportionate means of achieving [the government's] legitimate objective", and held that – as it was capable of being applied in a proportionate way that is not discriminatory – it was not in fact unlawful. 

The judgment acknowledged that some landlords discriminated against non UK passport holders due to administrative convenience and the fear of letting to an illegal immigrant – penalties for non-compliance with the checks include a fine and up to 5 years in prison – but held that most landlords complied with the requirements without discrimination. Not surprisingly, the JCWI has indicated its intention to appeal the decision to the Supreme Court so this may not be the end of the matter.

What does this mean for landlords?

For the time being at least, the scheme remains in force and landlords will need to continue to comply with its requirements.

Following this case, the government has issued an updated code of practice for landlords on how to avoid discrimination in complying with the scheme. 

Adjusted requirements during the COVID-19 pandemic 

Further guidance has also been issued on undertaking right to rent checks during the COVID-19 pandemic. Checks have been adjusted on a temporary basis with effect from 30 March 2020 to make it easier for landlords to carry them out. These include:

• Allowing tenants to submit a scanned copy or a photo of their original documents for checking, by email or using a mobile app such as WhatsApp. Previously, landlords were obliged to inspect original documents.
• A video call can then be arranged with the tenant holding the original document up to the camera for the landlord to check it against the digital copy provided.
• Landlords should record the date of the check and mark it as "an adjusted check has been undertaken on [date] due to COVID-19".

The revised rules are intended as a short term measure only, to be lifted once the pandemic is over. An announcement will be made by the government to signal the end of the adjusted measures. After that date, landlords will need to complete within 8 weeks retrospective pre-COVID-19 checks on all those tenants who started their tenancies during this period.