Blog: Implementing ‘Right to Rent’ immigration checks in Scotland: a recipe for confusion, complexity and discrimination?

James Battye

James Battye

There is fear that the UK government’s latest round of immigration reforms could increase discrimination against some people wanting to rent privately and ride roughshod over Scottish housing law.

The Immigration Bill received Royal Assent on the 12th of May, completing its progress through both houses of the UK parliament. The Immigration Act 2016 sets out to reform the immigration system “to further crack down on illegal migration”.

This adds to measures already on the statute book which compel private landlords to carry out checks on prospective and current tenants’ immigration status – known as the ‘right to rent’ check, not yet implemented in Scotland.

The UK government states that this “crack down” will be carried out through a range of measures, including introducing new offences to “prosecute rogue landlords and agents who repeatedly fail to carry out right to rent checks or fail to take steps to remove illegal migrants from their property”.

While the right to rent check may not yet be implemented in Scotland, the new act makes additional provision for its implementation north of the border. It does this by way of a power for the Secretary of State to make regulation to amend residential tenancy law in Scotland, effectively this will be to set down a new ground for eviction where a tenant fails to meet the ‘right to rent’ check.

Would this be simple to do? Probably not.

There are various tenancy types in Scotland, while some of these are relatively rare it is not inconceivable that an individual without a ‘right to rent’ might live in such a tenancy. Therefore amendments will need to be made to each statute which sets out the provisions for each tenancy will need to be amended. This includes the assured tenancy regime, the regulated tenancy regime, potentially the Scottish secure tenancy regime and the new private residential tenancy, which is due to be introduced in Scotland from late 2017.

Residential tenancy law in Scotland is fiendishly complicated. Just look at the assured tenancy regime: by far the most common tenancy type in Scotland is the ‘short’ assured tenancy that was only ever envisioned to be used in a minority of circumstances.

Could a UK government amendment to Scottish residential tenancy law result in a similar distortion in respect of a landlord’s ability to evict a tenant? Detailed legal opinion, along with consultation with key stakeholders in Scotland will be key to ensure that this does not happen.

Beyond this there is the valid question of whether the UK parliament has the power to legislate in this area – where does the devolved area of housing law end, and the reserved matter of immigration law begin? Can these two issues be sufficiently separated?

At the moment there are more questions than answers across these issues. Firstly, what is needed is clarity as to whether the right to rent check will apply in Scotland and, if so, when it will apply. There should then be an extensive consultation with landlords, legal professionals and the Scottish government on how provisions which relate to amending residential law by the Secretary of State will be used.

And lastly steps must be taken to avoid the very real risk that imposition of the right to rent could lead to discrimination by landlords against those who are not obviously ‘white British’ or ‘white Scottish’ . We already know that minority ethnic households are overrepresented in Scotland’s private rented housing market, and that analysis of the UK government’s pilot highlighted that there is a real risk of an increase in discrimination in the private rental market as a result of the right to rent check.

This paints a complicated picture.

Questions over the relative powers of both parliaments should be addressed openly, and if this policy is to be implemented in Scotland, it must not worsen discrimination against already marginalised groups. Central to this is a need for both governments to work together to ensure that this does not make a sector, which is already under pressure to improve standards, worse.

  • James Battye is a policy officer with Shelter Scotland.