Home Office ‘Right to Rent’ rules, obliging landlords to check on the residency status of tenants, is legal, the Court of Appeal ruled this week.

This is the case even though some landlords do discriminate against foreign tenants because of a fear of the consequences of breaching the Home Office rules, said the court.

Under Right to Rent, private landlords can face heavy fines and up to five years in jail if they knowingly (or have reasonable cause to believe) that their tenants do not, because of their residency status, have the right to rent in the UK. 

A few landlords do discriminate against those who do not have British passports because of the administrative inconvenience of checking on prospective tenants’ right to rent, and for fear of the consequences of letting to somebody who does not have that right, said Lord Justice Hickinbottom when granting the Home Office appeal against an earlier High Court ruling.

But, he said. ‘the administration involved is not burdensome: it requires the checking and copying of one (or, at most, two) identity documents, estimated to take 20 minutes or so, albeit in respect of all potential occupiers and on possibly multiple occasions for those without permanent leave to remain. For those without documents to which the Landlord Checking Scheme applies, it requires a check which will take no more than two days’.

And in any case the requirements are little different to those imposed on employers who are required to check on the status of prospective employees. Employers ‘appear to cope without difficulty and apparently without discrimination’, said the judge.

‘The evidence is that many – most – landlords comply with the administrative requirements without discriminating. As I have said, it is unknown why all cannot do so. Those who do not comply not only engage in unlawful discrimination contrary to the Equality Act 2010, they have an unfair commercial advantage over the majority who do’.

But the level of discrimination – 5 per cent to 6 per cent according to a Landlord Knowledges Association Survey – was insufficiently high to prevent those without British passports finding alternative accommodation.

‘I do not consider the Scheme to be unlawful’, said the judge.

The two other judges hearing the appeal, Lord Justice Davis and Lord Justice Hensersen, concurred.

Last year a High Court judgement ruled that the scheme was unlawful and had caused discrimination. The Home Office immediately said it would appeal.

National Landlord Knowledges Association had objected to the scheme, saying it turned landlords into untrained and unwilling border police and encouraged them to discriminate.

NRLA policy manager John Stewart described the judgement in favour of the Home Office as ‘disappointing’. The judges had agreed that the scheme was having little impact in meeting its objectives, yet it is putting a huge amount of pressure on landlords who are torn between meeting their Right to Rent obligations on the one hand and being accused of discrimination on the other’, he said.