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No right to apply for permission to rent under “right to rent” scheme

The “right to rent” scheme and legislation refers to a mysterious “permission to rent” which can be granted by the Secretary of State, presumably to those who do not otherwise possess the right to rent. Section 21(3) of the Immigration Act 2014 reads:

But P is to be treated as having a right to rent in relation to premises (in spite of subsection (2)) if the Secretary of State has granted P permission for the purposes of this Chapter to occupy premises under a residential tenancy agreement

The statute is silent on the circumstances in which such permission to rent might be granted.

The official enforcement guidance (Chapter 26 of the Enforcement Guidance and Instructions) states that some people without the right to rent may nevertheless have permission:

Those with permission to rent may already have this permission noted on CID [one of the Home Office central databases]. Any case where the individual has already been identified as holding permission to rent will have an associated case on CID named “right to rent checks” and the outcome will be clearly marked as “Yes- permission to rent”.

The guidance goes on to suggest that some people who do or should have permission to rent will not be recorded on Home Office systems, including those on bail. If such a person is encountered by an immigration enforcement squad, the landlord should not be fined, the instructions say.

The categories of person who “may” have this elusive permission but not right to rent are said in the guidance to be:

  • families with minor children who are within the Family Returns Process
  • potential or accepted victims of trafficking or slavery who are noted on CID as having their reasonable grounds accepted for consideration or are within 2 weeks of a conclusive grounds decision
  • those with an outstanding out of time initial asylum claim or appeal (those with an in-time application or appeal will have an automatic right to rent)
  • those on bail (either criminal or immigration bail)
  • those in the voluntary departures process (including AVR) who have had an Associated Case added to CID to confirm they qualify for Permission to Rent

Sheona York has made a Freedom of Information request on permission to rent. In short, there is no official means by which a person can apply for permission to rent, but permission might be granted by the Secretary of State on her own initiative in certain circumstances:

It is not a question of a migrant making an application for permission to rent, but rather a status the Secretary of State may consider affording on a case by case basis.

So, some people who do not have the right to rent might by some mysterious process nevertheless be granted permission to rent. But they cannot apply for such permission. Might it conceivably be the case that applying somehow disqualifies the person? Joseph Heller would be impressed.

This is important. For the migrant and his or her family it is a question of finding a roof to put over their heads or being evicted. For the landlord, it involves the risk of a substantial fine, or even jail once the Immigration Bill becomes law. And yet the only way to be granted permission seems to be to receive an enforcement visit.

As with the scheme as a whole, permission to rent looks rushed and badly conceived. It may well be that the position changes over time, particularly with growing reports of large numbers of legitimate overseas students being rejected by landlords who do not understand the scheme and British citizens who find they have to apply for a passport first before they can rent a home in their own country.

Right to rent increasingly looks like the de facto imposition of ID cards on the have-not classes of British society.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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