The “right-to-rent” scheme was a cornerstone of Theresa May’s hostile environment, which she put in place during her time as home secretary to curb illegal migration to the UK. Since 2016, the scheme has required landlords to check the status of their tenants by reviewing identification documents – a passport, for example. If landlords fail to comply, they can face fines of up to £3,000 or up to five years in prison.
This controversial policy has been criticised by campaigners, who are concerned that it could cause discrimination and prevent migrants, ethnic minorities and vulnerable people from finding a home in the private rental sector. Now, the UK’s high court has found that the scheme leads to discrimination against some of the UK’s most vulnerable citizens breaches human rights.
In his verdict, handed down on March 1, 2019, Justice Spencer also blocked the roll-out of the policy across Scotland, Wales and Northern Ireland. Of course, the government has the chance to appeal and this is probably not the end of court cases on this policy. But a growing body of research indicates that the policy is not only ineffective, but also could be harming UK citizens.
Research I conducted for the Residential Landlords Association in 2017 found that landlords’ concerns over prosecution due to this policy caused them to discriminate even against legal migrants, with 42% of landlords saying that they were less likely to let to someone who did not have a British passport.
One year on, in further research for the RLA, my colleagues and I found that this had increased to 44% of landlords. This shows that there is still pressure on landlords to discriminate, for fear of prosecution if they get something wrong.
These findings are consistent with those of the Joint Council for the Welfare of Immigrants (JCWI). In mystery shopper exercises, the council found that British Black Minority Ethnic (BME) citizens without a passport were more likely to receive negative responses from landlords than those who could provide a passport.
But, the council also found that there was no racial discrimination between non-BME citizens and British BME citizens who could provide a passport, when they applied for tenancies. The JCWI argued that this proved the discrimination was due to the right to rent policy, rather than any underlying racism.
The UK government itself had found that 25% of landlords were unwilling to let to those without a British passport. All of this evidence underpinned the arguments which helped to decide the high court case, where Justice Spencer ruled that the right to rent scheme breaches the Human Rights Act because it causes landlords to discriminate when they otherwise would not have.
An ineffective policy
The case not only found that the policy was causing discrimination, the judge also said that the government had failed to demonstrate that the policy was effective at encouraging undocumented migrants to leave.
In 2018, the policy came under criticism from the Chief Inspector of Borders and Immigration. In his report, he criticised the Home Office for failing to evaluate and assess the impact of the scheme and concluded that the right to rent policy was failing “to demonstrate its worth”.
In the government’s own impact assessment, it estimated that 830 civil penalty notices would be issued to landlords as a result of the right to rent policy each year.
But in our research for the RLA we found that, since 2016, there had been fewer than 700 reports to the Home Office by a landlord that their tenant did not have the right to rent, while the Home Office itself had only issued just over 400 civil penalty notices to landlords across England. So far, there have been no criminal prosecutions under the policy.
Given that the scheme is estimated to cost £106m the low levels of enforcement by the Home Office raise serious questions about the scheme’s effectiveness.
The purpose of the policy was to create a “hostile environment” for those living in the UK without leave to remain, by preventing them from accessing the basic necessities for a normal life, such as a home. But government data shows that both voluntary and forced returns have fallen each year since 2015.
The evidence shows that this policy is causing discrimination and deep divisions in society, while actual enforcement by the government has been lacklustre. What’s more, the scheme is also likely to lead to further unintended consequences, which affect some of the most vulnerable people in society.
At the last census, 17% of the population were found not to have a passport. This means that some of the most vulnerable (such as those who are homeless) or those without documentation (such as the Windrush generation) who do actually have the right to rent, have been unfairly locked out of a home because of this policy.
The case has confirmed previous research findings that the hostile environment is causing deep divisions and discrimination across communities. If the UK is to reunite after Brexit and create a more inclusive society, the government must abandon this ineffective, discriminatory approach.