The Immigration Act 2014 introduced a prohibition of tenancies to persons who have no entitlement to reside in the UK.
Section 21 of the Act outlines the principal provision. You can view it here.
The UK Government’s claimed its aims were two-fold. They wanted to ensure the availability of private rented property for UK citizens and those entitled to reside in the UK and to outlaw unscrupulous landlords who might otherwise exploit illegal immigrants and allow them to be penalised for doing so.
As a result of this, a “right to rent” scheme was introduced in England in 2016 in order to evaluate its effectiveness. The scheme required private landlords to check the status of potential tenants to ensure they had the right to remain in the UK. If they had that right, they could then rent the property. If landlords failed to carry out these checks, they could face being charged with a criminal offence that carried a sentence of up to five years imprisonment or a fine. If the scheme was successful, the plan was to roll it out to other parts of the UK.
The Scottish Association of Landlords had long opposed its introduction in Scotland
The Joint Council for the Welfare of Immigrants sought a Judicial Review of this part of the legislation. They claimed that the practice was discriminatory and incompatible with Article 14 of the European Convention on Human Rights when read in conjunction with Article 8. You can read the European Convention on human Rights by clicking here. It was their contention that landlords would err on the side of caution renting out for their properties and this meant that people who were perfectly entitled to reside in the UK were turned away because of their apparent race or ethnicity.
The Judge, Mr Justice Martin Spencer, agreed that the legislation was incompatible with the European Convention on Human Rights and also said it would be unsafe to roll it out to Scotland and other parts of the UK. In his judgement he said: “In my judgment, the experience of the implementation of the Scheme throughout England has been not that there will be merely a risk of illegality should the Scheme be extended to the devolved territories but a certainty of illegality because landlords in those territories will have the same interests and will take into account the same considerations as their counterparts in England.” (you can read the full judgement here).
In his conclusion, Mr Justice Martin Spencer also said: “An Order declaring that a decision by the Defendant [The Home Office}] to commence the Scheme represented by sections 20-37 of the Immigration Act 2014 in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.”
The UK Government now must review the decision and determine if this should be appealed. Until that decision is made, it’s unlikely the UK Government will consider extending the scheme to Scotland or any other parts of the UK.
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