Right to Rent – Unlawful discrimination consultation

The Home office has opened a new consultation and code of practice applying only to residential tenancy agreements commencing on or after 6 April 2022. It also applies where a repeat check on an existing tenant is required to be carried out on or after 6 April 2022 to retain a statutory excuse: Click here

The purpose of this code of practice is to ensure that landlords do not unlawfully discriminate contrary to the Equality Act 2010 when carrying out right to rent checks. It provides practical guidance for landlords on what they should or should not do to avoid unlawful discrimination when complying with their obligations under the Immigration Act 2014.

The code says landlords should:

Be consistent in how they conduct right to rent checks on all prospective tenants, including those who the landlord believes are more likely to be British citizens

Ensure that no prospective tenants are discouraged or excluded, either directly or indirectly, because of known or perceived protected characteristic

Furthermore, landlords should not:

• discriminate when conducting right to rent checks
• simply check the status of those who the landlord thinks appear or are likely to be migrants
• treat those with a time-limited right to rent more or less favourably
• treat those who have access to the Home Office online checking service more or less favourably
• treat those who provide a manual documentation as listed in the list of acceptable documents more or less favourably
• make assumptions about a person’s right to rent, or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or length of time they have been resident in the UK

A landlord who discriminates contrary to the Equality Act 2010 in the way in which right to rent checks are carried out may be subject to a discrimination claim in court. The Equality and Human Rights Commission can also bring proceedings against a landlord who publishes a discriminatory advertisement or who instructs or induces another person to discriminate.

What is discrimination?

The Equality Act 2010 (the 2010 Act) prohibits discrimination and other unlawful acts in letting practices on the following grounds, known as ‘protected characteristics’:

• age
• disability
• gender reassignment
• marriage or civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

Direct discrimination

This is when an individual is treated worse than another person or people because either:

• they have a protected characteristic
• someone thinks they have a protected characteristic (known as discrimination by perception)
• they are connected to someone with that protected characteristic (known as discrimination by association)

Unless there is a statutory exception, direct discrimination cannot be excused or defended. For example, in relation to right to rent checks, direct discrimination would include:

• rejecting prospective tenants because they do not have British citizenship or another specified citizenship
• refusing to consider any international tenants, or only carry out checks on person believed to not be British citizens on the basis of the individual’s colour, ethnic or national origins

As stated in the Equality Act 2010 race can mean an individual’s colour or nationality. It can also mean an individual’s ethnic or national origins, which may not be the same as their current nationality. Race also covers ethnic and racial groups. This means a group of people who all share the same protected characteristic of ethnicity or race. Members of particular religious groups, such as Jews and Sikhs, also form racial groups for the purposes of equality law.

Indirect discrimination

Indirect discrimination is where:

• there is a policy that applies in the same way irrespective of protected characteristics but disadvantages a group of people who share a protected characteristic, and
• an individual is disadvantaged as part of this group

This will be unlawful, unless the provision, criterion or practice is objectively justifiable (proportionate and necessary). It makes no difference whether anyone intended the policy to disadvantage an individual or not.

For example, indirect discrimination in the context of right to rent checks could occur:

• where there is a requirement that a prospective tenant must have been resident in the UK for over five years, migrants are less likely to be able to meet the requirement than UK citizens even if they have a right to rent
• where there is a requirement that the accommodation is only to be rented by members of a particular occupation, in which specific ethnic groups are over or under represented, unless there is a justifiable reason why the accommodation should only be occupied by members of that occupation

Under the 2010 Act, discrimination committed by someone acting on a person’s behalf (such as a letting agent or property manager) may also be treated as having been committed by that person. Landlords can avoid this liability if they can prove that they took all reasonable steps to prevent such discrimination. It is also unlawful to instruct or induce another person to discriminate or to publish an advertisement or notice that indicates an intention to discriminate.

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