Update: What is Permission to Rent?

I wrote about  permission to rent in a previous post and listed some of the situations where a migrant who does not have a right to rent will be granted permission to rent.

The Home Office has now given some further guidance on permission to rent in their recently  updated short guide for landlords on right to rent, click here

This guidance contains an expanded list of circumstances where permission to rent will normally be granted. These specified circumstances are highly technical and will not be easily understood by anyone without a good grounding in immigration law and enforcement. The circumstances are:

• Individuals with an outstanding protection claim, Article 3 ECHR medical claim, or an outstanding appeal against the refusal of such a claim.
   
• Individuals who have lodged further submissions against the refusal of a protection claim and the submissions have been outstanding for more than five working days.
   
• Individuals who have an appeal outstanding which cannot be pursued from abroad.
   
• Individuals whose judicial review application has been given permission to proceed and where the judicial review would as a matter of policy be treated as being suspensive of removal. This would continue until any reconsideration required by the Home Office as an outcome of the judicial review had been undertaken.
   
• Individuals who have been granted bail by an immigration tribunal or the courts which contains a residence restriction and/or electronic monitoring restrictions.
   
• Potential victims of modern slavery from the date of a positive reasonable grounds decision from the National Referral Mechanism up until two weeks after either a positive or negative conclusive grounds decision.
   
• Recognised victims of modern slavery with an associated outstanding application for discretionary leave.
   
• Families with one or more children under the age of 18 who are cooperating with the Home Office’s Family Returns Process.
   
• Individuals who are complying with the Home Office’s voluntary departure process. This includes those with genuine obstacles to return, providing that they are taking all reasonable steps to address these.

In addition to these circumstances, migrants can be granted a right to rent for these reasons:

1. It would allow the Home Office to better progress a migrant’s case if they were allowed permission to rent.
    
2. The migrant is considered to be a vulnerable person or unable to make their own decisions.
    
3. In order to avoid a breach of human rights.

The guidance makes clear that permission to rent is never an entitlement – it is entirely a  discretionary matter for the Home Office, and it will only be granted where a migrant is complying with requirements set down by the Home Office. These requirements are likely to include reporting regularly to an immigration office or police station and informing the Home Office of their address.

The Home Office might consider that they can progress a case better if a migrant is given permission to rent where they are seeking to detain and remove an individual from the country since a fixed address makes detaining someone considerably easier.

Permission to Rent in Practice

The guidance tells landlords that if a migrant informs them that they have permission to rent, they must verify this using the Landlord Checking Service. This service will give a ‘yes’ or ‘no’ response within two working days, indicating whether the migrant may rent property.

There is an internal logic to Permission to Rent which may persuade the Home Office that this is a fair and practical system, but the scheme still appears to inevitably lead to discrimination against migrants when operating in the real world.

Right to Rent and Permission to Rent are so complex that landlords and tenants will both face considerable difficulties in operating lawfully. For example, will would-be-tenant migrants be able to identify themselves as “Individuals whose judicial review application has been given permission to proceed and where the judicial review would as a matter of policy be treated as being suspensive of removal”? Will landlords be prepared to wait two days for an answer from the Home Office as to whether such a person really is permitted to rent? Will migrants be able to find stable accommodation when they are effectively required to tell potential landlords about their outstanding immigration appeals and applications?

By placing what are really immigration enforcement duties on landlords, the Right to Rent scheme has created a substantial burden  for both landlords and tenants. It is inevitable that landlords will make mistakes receive penalty notices from the Home Office. If you have received such a notice, you should take advice promptly, as you may be able to overturn the penalty notice if you act quickly.

Anthony Gold will shortly be running a seminar on the Right to Rent in light of the upcoming Immigration Act 2016 and the implications of Brexit. More information can be found here.