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Right to Rent – ‘discriminatory’ and against human rights but still in force for now

The government’s controversial Right to Rent scheme, hated by landlords and tenants alike, has been branded ‘discriminatory’ and in breach of human rights laws by the High Court.

Introduced as part of Theresa May’s attempt to create a ‘hostile environment’ for illegal immigrants, Mr Justice Martin Spencer  said the scheme had ‘little or no effect’  on its main aim of controlling immigration and even if it had, this was ‘significantly outweighed by the discriminatory effect’.

The court’s decision was welcomed by the Joint Council for the Welfare of Immigrants (JCWI) and the Residential Landlords Association (RLA).

Both say their research shows that fear of getting things wrong, and incurring a fine or even a prison sentence as a result, means private landlords forced to conduct stringent Right to Rent checks have been less likely to rent to people without a British passport.


The RLA’s policy director, David Smith, said the ruling was ‘a damning critique of a flagship government policy’ and called on the government to accept the decision and scrap Right to Rent.

He added: “We have warned all along that turning landlords into untrained and unwilling border police would lead to the exact form of discrimination the court has found.”

The JCWI’s legal policy director, Chai Patel, admitted his elation at the decision was tempered – especially as the Home Office has been granted permission to appeal.

“I’m also despairing that it took this long to make the government see the blindingly obvious,” he said. “Even as we speak, their lawyers are preparing an appeal that argues that it should be legal for the government to cause racial discrimination in the housing market.”

Immediate effects

Although the High Court has said it would be illegal to roll out the Right to Rent scheme to Scotland, Wales and Northern Ireland without further evaluation, the provisions brought in for England in 2014 remain in force.

This means landlords are still legally obliged to carry out Right to Rent checks to ensure the immigration status of all prospective tenants before allowing them to rent a property.

Failure to comply means the risk of heavy fines and a possible five year jail sentence.

What next?

The Secretary of State now has two options when it comes to Right to Rent:

  1. To appeal to the Court of Appeal and then on to the Supreme Court. As permission to appeal to the Court of Appeal has already been granted, this is highly likely to be the course followed. If the Secretary of State wins this appeal, the High Court decision will be set aside. In effect, it will be as if it never happened;
  2. To take the matter back to Parliament – which will have to happen anyway if the government loses its appeal. It could be that pending immigration legislation linked to Brexit could either modify Right to Rent or considerably amend it.

To see what we have written previously on this subject, please click here.

For more information about this area of the law, and landlord and tenant disputes, please contact James Murray.

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