‘Right to rent’ faces High Court challenge

Judicial review application hearing due this week on the denial of rental accommodation to tenants with a right to live and work in UK.

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Government faces a High court challenge to its ‘hostile environment’ immigration policy and impact on access to rental accommodation.

The Joint Council for the Welfare of Immigrants (JCWI) says the “right to rent” scheme, which requires landlords in England to check the immigration status of their tenants, encourages “systematic discrimination” against ethnic minorities and people without British passports.

A judicial review application hearing is due on Wednesday and is expected to receive backing from a number of charities, human rights groups, MPs and peers.

Windrush put Right to Rent (RtR) under renewed scrutiny in highlighting instances of people who had a right to live and work in the UK being denied rental accommodation.

Nearly half of landlords who responded to recent surveys by the JCWI and the Residential Landlords Association (RLA) said they were now less likely to rent to people who did not have a UK passport – regardless of whether they were in the UK legally or were even UK citizens.

Chai Patel, legal policy director for the JCWI, said the case for judicial review centred on the potential for the policy to breach discrimination laws.

“The problem with this scheme isn’t that individual landlords are necessarily racist, it’s that the government has put in a place a scheme that incentivises systemic discrimination against certain groups,” he said.

“That contravenes the Human Rights Act and the European Convention of Human Rights, which prohibits that kind of discrimination and prohibits the government from putting in place schemes that encourage it.

“Over a number of years we’ve warned the Home Office about this.

“We’ve also seen the chief inspector of borders and immigration recently put out a report warning the Home Office there was no good evidence this scheme was working, and recommending a full evaluation of the scheme, which the Home Office has rejected”.

In the wake of Windrush, the Home Office issued new guidance to landlords on the rights of Commonwealth citizens who arrived in the UK before 1973.

But the RLA believes that without statutory changes to the law, their members will not feel sufficient protection from prosecution.

Policy director David Smith said: “It’s not really altering the situation. It requires landlords to make phone calls to complex and poorly staffed helplines, and the reality is this is something the government should have resolved a long time ago.

“It shouldn’t be up to landlords to go around making phone calls for something that is the government’s fault.”

Immigration Minister Caroline Noakes was warned by the RLA about its concerns about “right to rent” in January, months before the Windrush scandal was exposed.

In a letter sent by RLA chairman Alan Ward, Noakes was alerted to survey findings showing that 42% of respondents were reluctant to rent to those without a UK passport.

Ward wrote: “This is particularly concerning for the 17% of the usually resident population of England and Wales who, according to census data, do not have a passport.

“We continue to be concerned about the principal of the scheme, especially given that many landlords, faced with the prospect of a criminal conviction, are playing it safe by refusing to rent to anyone without a passport, even if they are UK nationals”.

In April, 24housing reported the Home Office rejecting a key recommendation from its own chief inspector of borders and immigration made in a report that effectively brands the Right to Rent (RtR) scheme racist.

This recommendation called for a new consultative panel to test allegations that landlords were refusing to rent to would be tenants without British passports or “with a foreign name or foreign accent”.

According to the report, an existing panel had not met since November 2016 and there is no mechanism for anyone to report suffering discrimination.

In a formal response, the Home Office has dismissed both the need for the new panel or for a wider evaluation of the Right to Rent scheme.

The RLA seized on the report as a “damning critique of a failing policy”.

“Landlords should not be used as scapegoats for the failures of the border agencies – it is time to suspend this controversial and unwelcome policy,” said Smith.

Support groups were equally scathing in their response to the Home Office rejecting the recommendations.

JCWI said the refusal to evaluate was “disgraceful” when its research showed 42% of landlords were unlikely to rent to someone without a British passport – with a quarter less likely to rent to people who “appear foreign”.

The report looked at the Home Office’s development of RtR, its implementation and initial evaluation, the operational response by Immigration Compliance and Enforcement (ICE) teams and others, and what monitoring and evaluation there had been of RtR since it was rolled out across England.

The report also summarised concerns from stakeholders about the impact of RtR on issues such as discrimination by landlords against particular groups or types of prospective tenants, exploitation and homelessness.

Overall, the report found RtR had yet to demonstrate its worth as a tool to encourage immigration compliance, with the Home Office failing to coordinate, maximise or even measure effectively its use, while at the same time doing little to address the concerns of stakeholders.

Landlords who lease properties to illegal immigrants can be fined up to £1,000 for a first offence, or jailed for up to five years.

However, the report – slipped out just before Easter, alongside three other immigration studies – revealed that not a single prosecution has taken place.

Between February 2016 and July 2017, a total of 265 fines were imposed after investigations into 468 individuals, leading to £165,520 of penalties.

The Home Office responded by rejecting the call for an RtR consultative panel, proposing instead to reconvene the existing Landlords Consultative Panel for the rest of the year and offering to explore “different channels of communication” through engagement at the local level, such as at local authority led landlords’ events.

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