Redrawing the border through the ‘Right to Rent’: Exclusion,discrimination and hostility in the English housing market

Policing the border and the responsibilisation of private landlords

Balibar (2004: 109) stated that although borders “should be at the edge of territory, marking the point where it ends, it seems borders and institutional practices corresponding to them have been transported into the middle of political space”. Borders, Balibar claimed, are “wherever selective controls are to be found” (2004: 84). The RtR system functions as a process of routine bordering in a non-linear fashion that allows for pervasive checks on the individual. Yuval-Davis et al., (2018: 229) define bordering as “the everyday construction of borders through ideology, cultural mediation, discourses, political institutions, attitudes and everyday forms of transnationalism”. This is not only apparent in the realm of renting; it is now routine in many aspects of people’s day-to-day existence. Wemyss et al., (2018: 152), when discussing marriage registration, argue that “progressive legislation . . . have made unpaid bordering responsibilities central to contemporary citizenship duties as citizens are expected to monitor those whom they judge as not having the right to work or live in the UK.” They see this legislation as part of a broader political project that involves an array of citizens in the processes of bordering. This is only too evident in the housing field, where the Immigration Acts (and their supporting guidance) mobilises private landlords to ‘police’ the border through screening potential tenants to ensure they are British citizens and/or have the right to remain in the UK. This requires landlords to collect and check very personal information and retain copies of tenants’ identity documents. It provides a very real example of what Yuval-Davis et al. (2018) has labelled ‘everyday bordering’, and what Rose (1996) has traced as a broader process of responsibilisation of citizens following the re-territorialisation of governance. This involves a scalar shift in government downwards from the State to active, responsible citizens in their communities. These themes have already been noted in a UK social housing context through research on tenant empowerment and anti-social behaviour (McKee, 2011; Flint, 2003). But there has been little consideration of the responsibilisation of private landlords within these broader shifts in state-citizen relations.

It will come as no surprise that the landlord organisations we interviewed argued vociferously that this was not an appropriate role for landlords, most of whom were simply ‘ordinary citizens’, and thus lacking the professional skills to undertake this policing role:

I don’t think it’s appropriate for a landlord to be the person to turn around and say, no, your papers aren’t in order [. . .] to have to be the person to knock on the door of what is their home and say you’re no longer allowed to live here, which is the state at the moment with right to rent. I think it put landlords and tenants in a very, very awkward position (Participant 9).

I don’t think it’s right to turn private landlords, and housing associations, into border control agents (Participant 2)

RtR checks were regarded not only as a potential threat to tenant-landlord relationships, which is a relationship of power that is already imbalanced (McKee et al., 2019), but it also evokes, imagines and mobilises private sector landlords as the ‘border police’, requiring them to act to monitor and potentially restrict people’s access to housing. This was not a role that landlords welcomed, with their representatives highlighting that the legislation was too complex, given the sheer range of different identity documents acceptable for different categories of migrant. This was reverberated by our analysis of the RtR guidance documents.

The Government’s “Check your tenant’s right to rent” (https://www.gov.uk/check-tenant-right-to-rent-documents/further-checks ) is the primary site to outline how checks should be carried out and what procedures landlords should adhere to. This webpage leads to five links within this process. The front webpage clearly – and in emboldened text – iterates the consequences for failing to complete follow-up checks. The five steps involve 1) who you have to check, 2) how to do a check, 3) making copies of the documents, 4) follow-up checks, and 5) agents and subletting. Each step is linked to another webpage with additional detailed guidance and some external pdf links. This does not present itself as an easy five step process; as one clicks through the links, the intricate nature of the guidance becomes apparent.

This webpage also has two extensive guideline documents embedded within it, the Right to Rent Code of Practice (CoP), and the Document Checks User Guide. The Right to Rent Code of Practice (https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice) was released in February 2016. Over 33 pages, it details the reasons a CoP is required, by whom, and how it should be used. It outlines the unlimited and time-limited RtR status, the tenancies covered by the RtR, the penalties facing landlords who do not comply, the processes to object to such penalties, and how checks should be carried out, recorded, and administered. It is a weighty and detailed document. The guidance for documentation checks covers nine pages, while the liabilities detail and processes of objections towards these covers seven pages. This comprehensive document is further linked to a 39-page Document Check User Guide (https://www.gov.uk/government/publications/right-to-rent-document-checks-a-user-guide), which was released in December 2016 as a more user-friendly document. On first viewing, the use of colour and imagery in the User Guide makes for a more engaging document, in comparison to the grey and white of the CoP. This Guide provides a detailed “how to” guide for landlords to carry out a document check for their current or perspective tenants. This is outlined in a three-part process, to obtain, check, and, copy tenants’ documentation. It provides for three lists of documents. Each list is presented as an inventory of documents, with corresponding thumbnail images and embedded links of document types.

List A – Group 1 are documents that are listed as appropriate evidence for the unlimited RtR. These currently include UK/EEA/Swiss passports, EEA/Swiss permanence residence card, passports stamped with unlimited leave to remain, Biometric residence permits with unlimited leave to remain, UK immigration status documents with unlimited leave to remain, or a certificate of naturalisation or registration as a British citizen. List A – Group 2 showcases suitable combinations of documents that allow for unlimited right to rent. Any two or more of the following must be presented together to the landlord for inspection. These include; UK birth/adoption certificate, a driving licence, a letter of attestation from an employer, a letter of attestation from a UK passport holder working in an “acceptable profession”, a letter from a UK Government Dept or Local Authority, Benefits paperwork, a criminal record check, a letter from the National Offender Management Service, a letter from HM Prison Service, evidence of UK armed forces service (current or previous), a letter from a UK Higher Education Institution, a letter from a PRS access scheme, a letter from police confirming certain documentation has been reported stolen. This presents an extensive list of documents that are not regularly seen or reviewed by lay people. Many would have no previous experience of such documentation. List B outlines the documents that can be approved for a time-limited RtR. These include a valid passport with a dated stay endorsement, biometric immigration document with time-limited permission to stay, a Non-EEA national residence card, UK Immigration Service status documentation with a time limited endorsement from the Home Office.

Corresponding to each of the three categories there is a printable checklist with tick boxes for the documents seen and the date on which they were reviewed. There is also a 4-page list of Frequently Asked Questions and an appendix showcasing the format that various acceptable letters (as listed above) should take. Copies of all documents must be taken and kept safely by the landlord. If follow up checks are required due to the expiration of a time-limited residency then these must be checked, or fines are incurred. If a tenant fails a follow-up check the website provides a link to the Home Office reporting page. This section on reporting is placed directly below the potential penalties for the landlord on failure to institute follow up checks. Each page in the 5-point procedure has three constant links for a) checking if someone can rent your residential property, b) reporting an immigration or border crime, and c) details on ending a tenancy due to immigration status.

Given all of this, it is perhaps unsurprising that clearer guidance from the Home Office was judged to be critical in supporting landlords to manage their responsibilities. Whilst landlord organisations have played a pivotal role in communicating legislative requirements to their members, with additional training also being offered, the vast majority of private landlords are not members of professional bodies. As such, they may be less than fully aware of their responsibilities. Moreover, the complexity and differing interpretations of immigration legislation may further undermine landlord confidence, and ultimately their ability to conduct these checks in a sensitive manner. As one participant (3) noted, “I’m a lawyer, and I barely understand it [the Immigration Act]”.

Yuval-Davis et al., (2018) point to the situated gazes of those who perform the border, and the ties between bordering and the reconstitution of citizenship rights and responsibilities. This situated gaze is evident where the path of least resistance is favoured to avoid the confusing and onerous checks required by the Home Office. Our participants emphasised how the responsibilisation of landlords was resulting in a reluctance to rent to those who do not hold a British or recognizable EU passport, for landlords did not want the hassle of dealing with the additional checks required, or the possibility of prosecution if they made a mistake. Not least as the 2016 Act criminalised, as well as responsibilised, private landlords. This was a key point made by our respondents:

You’ve got effectively a large unskilled body of people who aren’t used to looking at immigration documents who are then supposed to be able to distinguish between different kinds of documents of which there are dozens. So, I think it was a mistake from the beginning to impose that responsibility on private landlords [. . .] the fact that the penalties are severe is bound to deter people from exercising any flexibility (Participant 1)

It’s such a complex duty really on landlords and I think what’s happened, and again research seems to show this, is that they’ve just erred on the cautious and anybody who looks foreign or is of colour or whatever just gets rejected (Participant 6).

The fear of prosecution has not only made landlords more cautious, but also potentially discriminatory in their approach to lettings, for it encourages behaviours that work to the disadvantage of those perceived not to be British citizens. Just as Rex and Moore were critical of the role of the (local) State in these exclusionary and discriminatory processes in the 1960s, our participants also drew attention to the explicitly hostile approach of the current UK Government towards migrants:

The whole purpose of the Immigration Act is the biggest piece of discriminatory legislation I think I have ever seen [. . .] You are not going to rent to people if you think that the very act of renting to them is going to land you with either a civil penalty or a criminal offence if you get it wrong (Participant 5)

This legislation has sent another signal that in fact legislation will discriminate against people of colour and ethnic minorities in general, even though it’s supposedly aimed at what the Government calls people here illegally (Participant 6).

Mechanisms of exclusion and discriminatory outcomes

The potential discriminatory effects of the Immigration Acts do not fall evenly. Rather, they structurally discriminate against people who do not appear to be British and/or who do not have a British passport, which is more likely to be BAMER groups and/or those on low-incomes. This has been reverberated by survey data collected from landlords by the Residential Landlord Association (Mykkanen and Simcock, 2018). Responses from nearly 3000 members highlighted that 44 per cent were less likely to rent to someone without a British passport, 53 per cent less likely to rent to someone with limited time to remain in the UK, and 20 per cent less likely to rent to an EU or EAA national; 5 per cent also indicated they had refused a tenancy since these checks were introduced. The RtR therefore represents a key mechanism of exclusion in the English housing market. The impacts on tenants, and potential tenants, is real and visible, manifesting itself in three distinct ways.

Firstly, migrants (and those presumed not to be British) are at risk of not being able to find housing. This was seen to be particularly pertinent in urban areas with booming housing markets where demand is high. In this context, landlords can afford to be selective about who they let their property to; a finding noted in other research on the PRS (McKee et al., 2019). This geography of discrimination was a key theme emerging from our interviews:

The rental market is fairly competitive at present, particularly in large urban areas [. . .] They can always find somebody else to take the room, so why should they be bothered with all that? (Participant 6)

You can certainly imagine circumstances where you’ve got a high demand area [. . .] If you’ve got 10 applicants, eight of who have a passport, you immediately recognise as something that means you are definitely not committing a criminal offence and 2 that it would take you an hour to go away and check, I can imagine the property goes to people who are easy to process (Participant 9)

In turn this leaves those whose citizenship is under scrutiny at risk of homelessness, or being forced to seek housing from landlords at the very margins of the market who ask no such difficult questions in return for poor and over-crowded housing conditions. Webber (2019: 77) forcefully states that the ‘hostile environment’ policies were created with “the explicit intention . . . to weaponise total destitution and rightlessness, so as to force migrants without the right to be in the country to deport themselves, at low or no cost to the UK.” Contrary to the stated aims of the legislation, restricting access in this way may not encourage the undocumented to leave Britain, rather it may simply force them into the arms of rogue landlords and the more unscrupulous, criminal end of the markets. Those who have further vulnerabilities, in addition to their immigration status, are at even greater risk of harm:

Those who perhaps have children or who have health needs or have additional vulnerabilities in addition to their insecure immigration status, I think ultimately, yes, it could have an impact, more negative impact on them. I think maybe they would be at higher risk of looking towards more unsuitable living arrangements (Participant 8).

Instead of it tackling any perceived immigration problems, what it is actually doing is allowing that landlord to buy his third Mercedes. It’s feeding a massive criminal market who they don’t care about the council, they don’t care about enforcement, because you can never point the figure at exactly who they are anyway (Participant 5).

Yuval-Davis et al (2018: 230) argue that “technologies of everyday bordering which are supposedly aimed at making people feel safe by keeping those who do not belong out, can undermine feelings of safety for everyone through raising a sense of precarity”. Our interviews demonstrate that this not only leaves vulnerable groups at risk of exploitation or being driven underground and/or onto the streets, but may also have wider, ripple effects. As one local authority key actor observed, it “could unsettle community cohesion, [. . .] and potentially hinder long-term integration” (Participant 8). The processes of marginalisation at play here may therefore not only affect individuals, but also communities that are host to higher proportions of BAMER and migrant households. The RtR, and the broader hostile environment, therefore, threatens to undermine decades of work around (migrant) integration.

Secondly, this issue of access becomes even more acute when we consider the growing role of the PRS in the UK. It is now the second largest housing tenure in England and in 2017 was home to more than 4.5 million households (ONS, 2019). As a result, its tenant profile has diversified and it is now housing more families with children and low-income households who would previously have lived in social housing. At the bottom end of the market, challenges have already been well documented in terms of the insecurity, affordability, and poor quality properties that tenants have to contend with (McKee et al., 2019). The RtR compounds for some, what is already a challenging living environment. For example, letting agents typically charge landlords £20–30 to conduct the checks on their behalf, with these costs often passed on to tenants in the form of a higher rent now that letting agent fees are banned. This exacerbates the affordability challenges facing renters, especially for those on the lowest incomes. Despite the cost and hassle of undertaking these checks, our participants were dubious as to the extent housing really was a key enabler that encouraged those with irregular immigration status to remain in the UK:

Potentially the lack of housing being available to them doesn’t trigger them to leave, it ultimately puts them in more risky situations (Participant 8)

I think that the provision of accommodation comes quite a long way down people’s list of what makes them think about staying (Participant 4)

Nonetheless, the impact on peoples’ housing rights is unmistakable. The ending of a PRS tenancy is already a leading trigger for homelessness in England. The RtR has exacerbated this by introducing an additional mandatory ground for eviction, and one that is carried out summarily in contravention of English housing law. More generally the scheme effectively “removes tenants from the picture” (Participant 2), for whilst the landlord can make use of the Home Office’s checking service, tenants have no comparable recourse. Indeed, key actors highlighted that immigration enforcement makes those with an irregular status “more wary” (Participant 2) of going to the local authority or other statutory agencies for support. Rogue landlords may also be exploiting tenants’ fears of immigration enforcement by threatening to report tenants to the Home Office for complaining about their private accommodation, for example due to disrepair or overcrowding. In contrast to its intended purpose, the RtR may therefore be directly contributing to the growth of the migrant housing market at the bottom-end:

It’s very often part of [. . .] modern day slavery, conditions [. . .] making it more difficult for people to get housing in the normal market actually is a further boost to that market (Participant 4)

What we find sometimes is we’ll talk to tenants who are documented migrants and absolutely fine but the landlords have told them that if they talk to the Council, they’ll end up getting deported, and that’s not how it works at all, so they hold them hostage [. . .] so it’s just feeding quite a terrible market [. . .] It’s almost like they focus on a particular type of tenant now and I think the Immigration Act, the right to rent has actually fed into that (Participant 5)

Thirdly, the issue of documented status is a complicated one. As the Windrush ³ scandal in the UK, and the situation of Dreamers ⁴ in the US context, underscore, citizenship and the rights and entitlements that come with it can change over time due to shifting government priorities and legislative change (Huber Perez, 2015). As Frances Webber (2019: 76) argues, migrants and refugees are “possessed of no rights but, at best, privileges that can be removed at any time”. This is exemplified by the workings of the RtR legislation. Crucially, the reason people cannot always prove their status is not always due to illegality; there can be a simpler explanation that they lack the necessary paperwork or are working towards their settled status. Some key actors were also keen to stress that certain vulnerable groups were more likely to lose documents (e.g. older people, the homeless, women fleeing domestic violence, victims of modern slavery), and therefore be unable to prove their immigration status:

Lots of people are affected by the difficulty of proving their status, and their status may be perfectly acceptable but they’re at risk of landlords mistaking their status [. . .] because they have some problem about their documentation. It might be at the Home Office, they might be on a visa that expired but they’re in the process of renewing it. There can be all sorts of reasons why they can have legitimate concerns about their documentation apart from them actually being illegal migrants (Participant 1)

Yet as one key actor noted there are assumptions around the entitlements of citizenship, which have an undeniable racial dimension. The RtR therefore perpetuates the othering of migrants, and the distinction drawn between ‘good’ and ‘bad’ migrants; those who can prove they have a settled, legal status and those that cannot:

Before we all got alerted to the Windrush thing [. . .] I’ve been asked about cases where older people especially have no documentation and some other aggravating factors sometimes, maybe drink problems, drugs or mental health problems, confusion, dementia that kind of thing [. . .] It did strike me with quite a lot of force once they asked, what if all of them were black? So, there’s issues there about a hidden layer of race discrimination that’s been going on. That’s not been about so much refusing people, as about assuming that some people are entitled without necessarily needing documentation (Participant 4)

Furthermore, for those who lack settled accommodation it is much more difficult to engage and access the support and legal advice necessary to submit their leave to remain application. Brexit will widen even further the potential pool of people who will require further checks under the RtR.