191: Right to rent scheme is not in breach of the European Convention on Human Rights

The Court of Appeal has allowed the UK government’s appeal and declared that the right to rent scheme is not incompatible with Articles 8 and 14 of the ECHR. Under the right to rent scheme, landlords of residential premises are required to check the immigration status of prospective tenants and other occupiers to ensure they have the right to be in the UK.

Although the scheme can in theory result in discrimination, the Court of Appeal ruled that it was capable of being operated by landlords in a proportionate way in all cases, and was justified. A minority of landlords were discriminating against potential tenants without British passports but this did not mean this scheme itself is unlawful.

Our previous blog in March 2019 commented on the High Court decision that the right to rent scheme was in breach of the ECHR and the Human Rights Act. The government was given permission to appeal this ruling.

Following the appeal, it has now been found that the right to rent scheme is capable of being operated in a way that is not discriminatory. The charity who originally issued proceedings against the government is hoping to appeal the decision to the Supreme Court, so there may be further updates in due course.

As a result of this ruling, the Home Office has published an updated Code of Practice for landlords on how to avoid unlawful discrimination when carrying out right to rent checks.

It has also issued temporary guidance for right to rent checks during the COVID-19 pandemic. Checks have been temporarily adjusted to make it easier for landlords to carry them out, including that:

• checks can now be carried out over video calls; and
• tenants can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals.