Guidance published by the Home Office on its Right to Rent scheme could lead to landlords breaking the law, the Residential Landlords Association has said.
The Home Office published updated guidance last month on how to comply with Right to Rent, which requires landlords in England to check the immigration status of prospective tenants.
The scheme was rolled our nationally in 2016 under then-home secretary Theresa May's so-called hostile environment policy to make it difficult for people to live and work in the UK illegally.
Landlords who fail to conduct the proper checks fines or face up to five years in prison.
But the RLA, which represents more than 35,000 landlords, has said that following some of the guidance included in the updated document would be breaking the law.
The document advises that when a prospective tenant is a foreign national of Australia, Canada, Hong Kong, Japan, Singapore, South Korea and the United States and plans to stay in the UK for up to six months, landlords need only check their passport and airline ticket to determine whether they have the right to rent in the UK.
In May, the Home Office extended visa-free entry to the UK via e-passport gates to nationals from these six countries – known collectively as B5JSSK nationals – who are visiting for up to half a year. This means they do not obtain a stamp in their passport or any other documentation proving their right to remain in the UK for that period.
“If they wish to rent accommodation in the private rented sector as their only or main home, a landlord will be able to establish the individual’s right to rent status by checking their passport together with evidence of the date they last travelled to or entered the UK,” the guidance says.
But the document, which has no legal standing, appears to contradict Right to Rent legislation.
The legally-binding code of practice for the scheme says that 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 guidance acknowledged that when individuals enter the UK, “their passport will not be endorsed by Border Force”, and that they will therefore “not have a current document enabling them to satisfy a right to rent check conducted by a landlord or lettings agent in the manner set out in the code of practice”.
However, the RLA has said the guidance has no legal standing and therefore cannot supersede the code of practice. The association said that unless the code of practice is revised to match the guidance, landlords could be left open to prosecution should a tenant remain in the country for more than six months.
CSW understands that members of the Home Office’s Right to Rent Consultative Panel – whose members include representatives of the RLA as well as other landlords’ and tenants’ groups, charities and local authorities – told the department before the policy was introduced that it could cause problems for landlords.
The guidance was published on 1 July – a month after the use of e-passport gates was extended.
The RLA warning is the latest controversy to strike the Right to Rent scheme, which has faced near-unanimous opposition from landlords, tenants’ groups, and housing and human rights charities since its inception.
In March, the High Court ruled the scheme breached human rights law as it “strongly showed” the legislation caused landlords to discriminate against both foreign nationals and black and minority-ethnic British citizens.
The Home Office is preparing to launch a review of the scheme and to appeal the judgement, which also blocked the department from rolling it out to Scotland, Wales and Northern Ireland.
David Smith, the RLA’s policy director and a member of the consultative panel, said the guidance was “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.”
Responding to the RLA’s concerns on Twitter, Chai Patel, a human rights lawyer and legal policy director at the Joint Council for the Welfare of Immigrants, which brought the High Court Challenge, said landlords would be “liable to civil penalty fines or imprisonment” if they followed the guidance.
“Yet again the Home Office proves that right to rent is totally unworkable,” he said.
A Home Office spokesperson said: “We have updated guidance on gov.uk to ensure Right to Rent checks are in line with latest policy changes.
"Ahead of publication of the formal codes of practice, we have been clear that we will not seek to impose a civil penalty or a prosecution in cases where landlords have complied with this guidance.”