What Does the EU Withdrawal Agreement Mean for the PRS

The long-awaited withdrawal agreement between the UK and the EU has been published. Naturally, we do not know at this stage whether it will pass through Parliament and be agreed by the UK and equally it is uncertain whether it will be agreed by the other 27 EU countries. However, assuming for a moment that it passes through these challenges unchanged then what does it mean for private landlords and tenants.

The PRS is only lightly affected by EU legislation. In practice, none of this will change for the foreseeable future anyway. The UK has already taken steps to ensure that all EU regulations and directives are within UK law by passing regulations and these will be continued both during the transition phase and beyond. So, changes to the regulatory environment will have to happen on a piece by piece basis and are unlikely to arrive soon. Ultimately, there are far more pressing areas of EU law to deal with than those relating to private landlords!

However, there is one important area, for England at least, where the withdrawal agreement and our future relationship is relevant. This is the Right to Rent as implemented by the Immigration Act 2014 (and amended by the Immigration Act 2016). There was considerable uncertainty as to whether EU nationals would still be able to enter and leave the UK freely and whether or not they would continue to have the Right to Rent. Assuming that the withdrawal agreement is ratified by all sides that position is now a great deal clearer. While the withdrawal agreement does not mention the Right to Rent explicitly it does deal with the Right to Reside and in practice the two are very tightly connected.

The withdrawal agreement specifies that EU nationals will be entitled to reside in the UK for up to 5 years provided they are working and also specifies that residence for 5 years will be a gateway to permanent residence. This appears to be for the whole transition period with the prospect of a permanent replacement for this arrangement later on. This would seem to satisfy the concerns that EU nationals might unexpectedly lose their right to reside and consequently a right to rent.

Notably, the deal also states that the UK government (and the EU) are free to introduce ID cards or permits for those residing and also specifies that they can use digital means to do this. This is clearly inserted by the UK and is based on the stated objective of the Home Office to use digital means to deal with EU nationals resident in the UK. The Home Office has also indicated that it wishes to use digital mechanisms in future to deal with the Right to Work and the Right to Rent. Having personally seen a demo of the Right to Work system I must admit to being impressed and can see that it would work better for many landlords if it was rolled out to the Right to Rent as well. It is pretty clear that if the current agreement is ratified that the Home Office will press on with a digital mechanism for dealing with EU Nationals and the Right to Rent more generally.

Of course, this is not the end of the discussion. The Right to Rent is subject to review in the High Court in December in a case brought by the JCWI. This is now being intervened in by the RLA (represented by Anthony Gold), Liberty and the EHRC so it is likely to be a substantial review. If the government was to lose this case then the Right to Rent would likely have to be substantially revised, if not disposed of altogether, and this might cause a substantial change in the approach.