Update on Right to Rent and Windrush

As the Government hurries to contain the fallout of the Windrush scandal, several initiatives have been quickly announced to address the problems faced by Commonwealth and British Citizens in the ‘Windrush generation’ who have a legal right to reside, work and live in the UK, but may not have the documents needed to prove this.

Offering waivers on citizenship fees and compensation will obviously help some people, but the Right to Rent scheme has created problems which will not be easily solved. I wrote here last week about how Right to Rent had led to discrimination against BME, non-British and non-European people who are trying to find rented accommodation.

The Government has responded to recent events by issuing a new guidance note for landlords. This note tells landlords to ask prospective tenants who lack evidence to prove they have right to rent to “get in contact with the dedicated unit in the Home Office so we can help them with the necessary documents to prove their status in the UK.”

Where landlords are concerned about their prospective tenant’s ability to prove their right to rent, they are advised to contact the Home Office “Landlord’s helpline”.

Is this new guidance adequate?

This guidance fails to address what is a complex problem. A prospective tenant who is a British or Commonwealth citizen with the right to live and work in the UK has a right to rent. The Home Secretary cannot grant discretionary ‘permission to rent’ in these circumstances. The role of the Landlords Checking Service (“LCS”) is to confirm to landlords whether they may grant a tenancy to someone who claims to have an outstanding application with the Home Office. The LCS give a ‘yes’ or ‘no’ response within two working days and landlords are entitled to rely on this answer. It seems likely that for the foreseeable future the LCS will have been instructed to give a ‘yes’ response to any queries relating to former Commonwealth citizens.

Agents in London complain that the market moves so fast that waiting two working days for a response will mean that the tenancy is granted to someone else. This guidance is not going to be read widely, and the problems of discrimination caused by landlords trying to ‘play it safe’ will continue.

The Home Office has also not updated its tool for landlords to check (https://www.gov.uk/landlord-immigration-check). Inputting answers relating to a Commonwealth citizen who arrived in the UK in the early 1970s but has no documents produced this answer:

“The Person can’t rent your property because they haven’t shown you documents to prove their right to rent.

If the person is already renting your property, you must report them to the Home Office.

You can read the landlord’s code of practice on making checks for more information.”

The problems of Right to Rent are not going to be solved by the Home Office setting up a helpline or waiving citizenship fees and this is not likely to go away quickly.  Unless the scheme is radically redesigned discrimination by landlords and agents appear to be inevitable consequence of Right to Rent.  The ‘Windrush generation’ will not be the only ones affected.

Right to Rent and the ‘Windrush generation’

The Right to Rent Scheme has created hassle and inconvenience for landlords and tenants generally, but studies have shown that its most severe impact has been on BME, non-British and non-European people who are trying to find rented accommodation. While the Joint Council for the Welfare of Immigrants (“JCWI”) and others have accused the scheme of having discriminatory impact on people in those groups, the Government took steps in 2017 to expand the scheme as it developed its ‘hostile environment’ policy.

The Independent Chief Inspector of Borders and Immigration published a report in March which was critical of the Home Office’s implementation of the scheme. One of the recommendations made that the Home Office should develop and make public plans for the monitoring and evaluation of the Right to Rent measures including the impact of the measures on racial and other discrimination. The Home Office response did not specifically address the question of discrimination and it appeared that the Government was not interested in looking closer at the knock-on effects of Right to Rent.

The recent focus on the status of the so called ‘Windrush generation’ may bring renewed attention to the discriminatory effect of Right to Rent. Named after the MV Empire Windrush, one of the many ships which brought people from Caribbean countries to the UK between 1948 and 1971, the Windrush generation are the group of Commonwealth citizens travelled lawfully to the UK. This group was granted indefinite leave to remain in the UK by the Immigration Act 1971, but many do not have any documentation to prove this. The immigration status of such people is further complicated by the fact that many emigrated from countries which were not independent from the UK at the time – and they were already British Citizens before they arrived.

Many in the Windrush generation who are entitled to live and work in the UK have struggled to prove this to the Home Office’s satisfaction. The Right to Rent scheme creates a further problem – how can someone demonstrate their right to rent property in England if they do not have the sorts of documents which the Right to Rent scheme requires?

The Right to Rent scheme does not require tenants to provide a UK passport, a biometric residence permit or a naturalisation certificate; other documents such as driving licences are acceptable in combination to prove someone has an unlimited Right to Rent. However, even if someone produces these documents, unless the landlord has a good understanding of how Right to Rent works, they may not realise that the documents provided are sufficient. It is inevitable that many BME people looking for a home in the private rented sector will be subject to discrimination when looking to rent property. As a society we may have moved on from ‘No black, no dogs, no Irish’, but the evidence collected by the JWCI and the RLA suggested that Right to Rent has introduced new forms of discrimination.

Landlords might ask for some sympathy here – if the Home Office cannot get it right, can they really be expected to understand the nuances of immigration and nationality law? It is not surprising that, as a survey by the RLA found, many landlords are taking an unlawful and discriminator ‘play it safe’ approach and are reluctant to let property to someone without a British passport.

The alleged structural discriminatory effect of the Right to Rent scheme will be considered in two pending judicial review claims against the Home Office, and the Government may now be forced to reconsider its ‘hostile environment’ approach entirely. Anthony Gold Solicitors are instructed to intervene in both these cases for an interested party.

While the Right to Rent scheme remain in place landlords and agents must consider carefully whether they have sufficient systems in place to prevent discriminatory practises. We work closely with letting agents on various regulatory and consumer law matters and we frequently offer training for letting agents on developments in the law. Please contact Robin Stewart or David Smith for more details.