A leading legal firm is warning that Right To Rent could become even more complicated for letting agents and landlords after Brexit.

This is despite the fact that the High Court recently deemed R2R as a breach of human rights for the tenants affected by the measure.

Now Ros Monk and Fran Rance, from legal firm Mishcon de Reya, warn in a briefing note on Right To Rent: “Brexit is only likely to further increase landlords’ responsibilities under the scheme in the future, as they may have to take into account European nationals as well as foreign nationals when assessing who has the right to rent.”

R2R – introduced by Theresa May when she was Home Secretary – has been mired in controversy since day one.

Under the regulations, which apply across England, agents or landlords should ask tenants for their original documents ‘proving’ their right to be in the UK.

This possibly involves requesting the tenant’s passport or visa, or possibly both. The agent or landlord should check the name, photograph and any expiry date of the documents, making copies of the documents and recording the date they made the check. If the tenant has a time-limited visa, the agent or landlord is expected to make checks in the future to ensure the tenant still has the right to be in the UK.

Landlords or agents who fail to carry out appropriate checks can be liable for civil or criminal penalties.

Following widespread criticism by lettings industry trade bodies and civil liberty groups, a ruling earlier this year by the High Court concluded that the whole Right To Rent scheme breached the European Convention on Human Rights on the basis that it led to discrimination against non-UK nationals with the right to rent and against British ethnic minorities.

The judge in that case concluded that the scheme caused agents or landlords to discriminate where otherwise they would not, describing such discrimination by landlords a being “logical and wholly predictable” when faced with potential sanctions and penalties for getting things wrong.

The Home Office has now been granted permission to appeal and so intends to challenge the decision.

Until that is resolved – possibly many months from now – agents and landlords must continue to make the checks; there has been considerable criticism from trade bodies about the lack of guidance as to how R2R will apply once the UK leaves the EU.