'Right to rent' checks and landlord discrimination

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The Immigration Act 2014, which prohibits the letting of homes to adults who do not have the right to live and work in the UK, received royal assent on 14th May 2014.

The bill was controversial, particularly among landlords, who are required to check their tenant’s ‘right to rent’ without formal training – and who face fines of up to £3,000 per tenant if they fail to do so.

1st December will see the introduction of a right to rent pilot scheme in the West Midlands, which will affect landlords in the boroughs of Birmingham, Dudley, Sandwell, Walsall and Wolverhampton, before the scheme is rolled out in full next year. As there is no confirmed timetable for this roll-out, landlords everywhere have been urged to prepare 1.

Discrimination worries

Amongst the criticism levelled at the Immigration Act since it was announced is the accusation that it might cause landlords to discriminate: both against ethnic minorities, and against vulnerable individuals such as the homeless who can’t readily prove their right to rent 2.

This leaves landlords between a rock and a proverbial hard place, as they are already bound by an existing set of statutes that prevent them from discriminating against tenants. If they do so, or instruct a representative such as an agent to do so, the victim has the right to bring a claim before the courts.

The Home Office has therefore released a further code of practice for landlords that advises them how to stay on the right side of discrimination law (the Equality Act 2010 and the Race Relations (Northern Ireland) Order 1997) whilst conducting immigration checks.

1. It is illegal to discriminate, directly or indirectly

It is illegal to discriminate on the grounds of citizenship, colour, nationality or ethnic or national origins. This includes members of certain religious groups, such as Jews and Sikhs, and – in Northern Ireland – the Irish Traveller Community.

Direct discrimination could involve either rejecting people of certain ethnic groups, or only considering people of certain ethnic groups. Only accepting inquiries from British tenants and refusing to consider applications from non-European tenants are both examples of direct discrimination.

Indirect discrimination is implementing a condition that would disadvantage people of a certain group. An example would be stipulating that all tenants must have been resident in the UK for a number of years, as non-British tenants would be less likely to fulfil this criterion.

2.  It is illegal to harass or victimise tenants.

In terms of the 2010 act, harassment is quantified as the creation of an environment that is degrading, intimidating, hostile, humiliating or offensive. Treating prospective tenants in this manner on the basis of their ethnic group – for instance, continuing to question their immigration status after they have already proved it – is considered discrimination.

3.  Racial discrimination is not the only kind already covered.

The 2010 Act also covers disability, gender reassignment, pregnancy and maternity, religious belief, sex, and sexual orientation. The Northern Ireland Act covers political opinion in addition to these other criteria.

4.  Discriminatory marketing is outlawed.

If a landlord publishes a discriminatory advert, or doesn’t take reasonable steps to stop someone doing so on their behalf, the Equality and Human Rights Commission may bring a claim before the courts.

For landlords: following a non-discriminatory ‘right to rent’ checking process

• Ensure that all prospective tenants provide documents that prove their right to reside in the UK – not just some of them.

• Treat all applicants equally, irrespective of the type or combination of documents or the time taken to provide them.

• If a tenant refuses to co-operate with checks, explain that they are there to satisfy a legal obligation. If the tenant still won’t co-operate, you may let the property without fear of breaking any laws 2.

• Take copies of all documents provided and keep them for at least one year after the end of the tenancy 4.

• If someone cannot prove that they are in the UK lawfully, don’t reject their application. Obtain a Home Office reference number from them and use the Home Office checking service to determine their right to rent.

Click here to read the Home Office guidance in full: Code of Practice for Landlords.

 

 References

[1]http://www.lettingagenttoday.co.uk/929-top-agent-tells-landlords-don-t-relax-on-immigration

[2]Armour, R. (17th June 2014). “Housing groups’ concern over Immigration Act”. Third Force News.

[3]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/370082/code_of_practice_for_landlords.pdf

[4]http://www.adviceguide.org.uk/wales/housing_w/housing_renting_a_home_e/immigration_checks_by_landlords.htm

  

Written by Ben Gosling at Commercial Trust

 

 


Posted by Ben Gosling, Commercial Trust on 19 November 2014

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