Fresh government guidance ‘could leave landlords open to prosecution’

Buy-to-let landlords are being urged by the Residential Landlords Association (RLA) not to follow new guidance from the government on its controversial Right to Rent scheme in order to avoid breaking the law.

The document states that for nationals from Australia, Canada, Hong Kong, Japan, Singapore, South Korea and the United States (known as B5JSSK nationals), planning on staying in the UK for up to six months, landlords will only be required to see their passport and airline ticket as proof that they can rent property. They do not need a visa.

Whilst this guidance has no legal standing, the RLA points out that this legally binding code of practice agreed by parliament makes clear that for such nationals landlords must be shown clear evidence from the Home Office that the holder has the right, either permanent, or for a time limited period, to reside in the UK.

The landlords’ organisation argues that a simple airline ticket with a passport does not meet this threshold. Without a corresponding change to the code of practice by parliament, the guidance does not give any legal cover for landlords should a tenant stay longer than six months.

The Right to Rent scheme, which requires landlords in England to check the immigration status of their tenants, was recently branded a ‘farce’ by the RLA following a court ruling that a landlord who seeks to repossess property where the Home Office tells them a tenant does not have the right to rent, is breaching equalities law.

Where the Home Office identifies a tenant without the right to rent, they will issue a formal notice to the landlord who then uses this as the basis to repossess the property.

But in a judgement issued by the High Court it has ruled that this breaches the Equality Act on the basis that it amounts to “direct discrimination on the basis of nationality”. 

Landlords who are forced to comply with the notice can be charged under the law as well as being at risk of a civil claim being made against them.

This ruling gives tenants who may not legally be allowed to be in the country a defence against any claim to evict them from a property and entitles them to an injunction to prevent eviction and possibly a further claim for damages.

A further ruling by the High Court earlier concluded that the legislation is discriminatory and breaches human rights laws.

The Home Office wants to roll the scheme out in Scotland, Wales and Northern Ireland, but judges said that this will now not be possible without further evaluation, as the evidence “strongly showed” that the existing policy is causing landlords to discriminate against potential tenants because of their nationality and ethnicity.

David Smith, policy director for the RLA, commented: “This represents a new low in the sorry saga of the Right to Rent.

“Having already been ruled to be discriminatory by the High Court, the government is now putting out guidance which could leave landlords open to prosecution.

“It reinforces once against that the Right to Rent policy needs to go and go now.”

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