Update on Right to Rent and Windrush

As the Government hurries to contain the fallout of the Windrush scandal, several initiatives have been quickly announced to address the problems faced by Commonwealth and British Citizens in the ‘Windrush generation’ who have a legal right to reside, work and live in the UK, but may not have the documents needed to prove this.

Offering waivers on citizenship fees and compensation will obviously help some people, but the Right to Rent scheme has created problems which will not be easily solved. I wrote here last week about how Right to Rent had led to discrimination against BME, non-British and non-European people who are trying to find rented accommodation.

The Government has responded to recent events by issuing a new guidance note for landlords. This note tells landlords to ask prospective tenants who lack evidence to prove they have right to rent to “get in contact with the dedicated unit in the Home Office so we can help them with the necessary documents to prove their status in the UK.”

Where landlords are concerned about their prospective tenant’s ability to prove their right to rent, they are advised to contact the Home Office “Landlord’s helpline”.

Is this new guidance adequate?

This guidance fails to address what is a complex problem. A prospective tenant who is a British or Commonwealth citizen with the right to live and work in the UK has a right to rent. The Home Secretary cannot grant discretionary ‘permission to rent’ in these circumstances. The role of the Landlords Checking Service (“LCS”) is to confirm to landlords whether they may grant a tenancy to someone who claims to have an outstanding application with the Home Office. The LCS give a ‘yes’ or ‘no’ response within two working days and landlords are entitled to rely on this answer. It seems likely that for the foreseeable future the LCS will have been instructed to give a ‘yes’ response to any queries relating to former Commonwealth citizens.

Agents in London complain that the market moves so fast that waiting two working days for a response will mean that the tenancy is granted to someone else. This guidance is not going to be read widely, and the problems of discrimination caused by landlords trying to ‘play it safe’ will continue.

The Home Office has also not updated its tool for landlords to check (https://www.gov.uk/landlord-immigration-check). Inputting answers relating to a Commonwealth citizen who arrived in the UK in the early 1970s but has no documents produced this answer:

“The Person can’t rent your property because they haven’t shown you documents to prove their right to rent.

If the person is already renting your property, you must report them to the Home Office.

You can read the landlord’s code of practice on making checks for more information.”

The problems of Right to Rent are not going to be solved by the Home Office setting up a helpline or waiving citizenship fees and this is not likely to go away quickly.  Unless the scheme is radically redesigned discrimination by landlords and agents appear to be inevitable consequence of Right to Rent.  The ‘Windrush generation’ will not be the only ones affected.