Jed Meers, Joe Tomlinson, Alice Welsh and Charlotte O’Brien: Rights on Paper? The Discriminatory Effects of Digital Immigration Status on Private Landlord Decisions

Under the EU settlement scheme, millions of EU, EEA and Swiss nationals have been granted “digital-only” immigration status. Instead of having physical documentation to prove their immigration status, these individuals must rely on an online proof-of-status service through the GOV.UK website. We wanted to examine whether individuals with this form of “digital only” status are disadvantaged in the private rented sector by exploring the decision-making behaviour of English landlords when choosing between prospective tenants. The so-called “Right to Rent” policy requires English private landlords to check the immigration status of a tenant or lodger, to ensure they can legally rent their property. In practice, this happens by inspecting their proof of ID. We therefore had two questions. First, are the tenant preferences of English private rented sector landlords influenced by ID status? Second, to what extent is ID status a significant factor in English private rented sector landlord preferences, relative to factors already known to influence landlord decision-making (such as age, gender, ethnicity, and occupation)?

Method

Working with the leading survey company YouGov, we commissioned a discrete-choice experiment with a sample of 1,020 landlords in the private rented sector living in England. Fieldwork was undertaken between 24th January – 6th February 2023, and the survey was carried out online. The figures have been weighted and are representative of all private rental sector landlords in England, based on age, number of properties rented out, region, gender and ethnicity. 

We asked the landlords to imagine they were renting out one of their properties. We showed each landlord three pairs of prospective tenants and asked them to choose which of the two they would prefer to let their property out to. The landlords were then shown three pairs of emails from prospective tenants. Drawing on prior studies of landlord decision-making, we varied each of the emails they were shown randomly across five factors: the gender, ethnicity (via their name), occupation, age and proof of ID of the prospective tenants. Proof of ID was varied across five factors: a British passport; a photograph of a British passport; a UK residence card; “digital-only” status (via a “sharecode” for use on the UK Government website); and a certificate of application for “digital-only” status (via a “sharecode” to confirm their application). In line with other studies of landlord decision-making in the private rented sector, the nationality of the hypothetical tenant was not varied expressly – partly because of the problems this would generate for interactions with ID status (for instance, a British national would not have a “sharecode”). Each landlord saw a random allocation of three pairs from a pool of 240 possible combinations.

Participants were also asked basic demographic information (age, gender, country of birth, employment status, first language, nationality), information about their activities as a landlord (such as the number of properties they let out and the extent to which they use the services of a lettings agent), and, after they had selected between prospective tenants, about their understanding of the “right to rent” process, prior experience of conducting right to rent checks, and their views on immigration.

Findings

Regression analysis demonstrates that the order of preferences of landlords were for a British Passport, a UK residence card, a scan of a British Passport, digital status and – least of all – a digital status showing a pending application. Figure One details the extent of disadvantage for each ID type, relative to a British passport. Expressed in terms of probabilities of being chosen, this means that a male, English tenant – aged 20 years old and working as a retail assistant – would have a 48% probability of being chosen with a British Passport, a 28% probability with “digital status” and a 21% probability with proof of application for digital status.

Figure One: Extent of disadvantage relative to a “British passport” controlling for all other factors (expressed as Bayesian regression coefficients)

The age, gender, ethnicity and occupation of a tenant all have an effect on whether they are picked by the landlord or not. However, even when controlling for the effects of all of these factors, the effect of different status ID upon the probability of a tenant being chosen still holds. In fact, ID status has the largest effect compared to any other factor varied in the survey.

We also investigated the potential that the lower likelihood to pick a hypothetical tenant with a ‘sharecode’ as a form of ID could be driven by landlord-level factors: namely, landlord age, gender, ethnicity, education level, industry experience, attitudes and beliefs about (or toward) immigration and technology, or prior experience of “right to rent” checks. None of the landlord-level attributes modelled explain why “digital status” reduces the probability of a tenant being chosen, suggesting it is simply the form of ID itself that landlords disfavour. For certificates of application, a lack of confidence in technology, a lack of familiarity with right to rent checks, negative sentiment towards immigration, and a higher level of education, all made a landlord less likely to choose a tenant with this ID type. These findings suggest that increasing familiarity with right to rent checks and with the use of technology among landlords may reduce the greater extent of disadvantage seen for tenants with this ID type.

The implications for rights under the Withdrawal Agreement 

The Withdrawal Agreement between the United Kingdom and the European Union permits the UK (and Member States) to require registration for a new status, which may be evidenced by a document “in a digital form” (Article 18 WA). However, in implementing any such scheme, the UK is bound by the non-discrimination and equal treatment provisions in the Withdrawal Agreements.

Our evidence shows that the mechanism adopted by the UK government creates a significant penalty for EEA+ nationals. The YouGov survey results show that ID status is the factor with the greatest influence over the landlords’ decisions to choose tenants, and the sharecode mechanism is the form of proof of ID most likely to lead to rejection, but it is the only way that people with EUSS status can demonstrate their residence right, and landlords are obliged to request and check it. The scheme, therefore, creates a mandatory disproportionate disadvantage for EEA nationals, the sole cohort reliant upon this mechanism. The severity of the consequences suggests that the UK government may have failed to comply with its obligations under Article 12 WA (and Article 11 of the EEA Separation Agreement) prohibiting discrimination on the grounds of nationality.

The UK also has a positive duty of equal treatment for EU nationals under Article 23 WA (and Article 22 EEA SA) with regard to citizens’ rights in the UK. The scheme adopted creates a discriminatory disadvantage in the private rental sector for EEA nationals, making it more difficult to secure housing when compared to their UK counterparts who can demonstrate a right to rent through a physical document, most commonly a UK passport. A discriminatory reduction in access to secure housing in turn jeopardises EEA nationals’ ability to exercise their residence rights, and employment rights, all contained in Title II of the Withdrawal Agreement (and Title II of the EEA SA). The detriment that the current mechanism creates in the exercise of rights contained in the Withdrawal Agreement may amount to unequal treatment.

This research was kindly funded by the Research England Policy Support Fund, as allocated by the York Policy Engine. We are grateful to the team at YouGov for their efforts on this research.

Dr Jed Meers is Senior Lecturer in Law at the University of York. 

Professor Joe Tomlinson is Professor of Public Law at the University of York.

Dr Alice Welsh is a Research Fellow at the University of York.

Professor Charlotte O’Brien is Professor of Law at the University of York.

(Suggested citation: J. Meers, J. Tomlinson, A. Welsh and C. O’Brien, ‘Rights on Paper? The Discriminatory Effects of Digital Immigration Status on Private Landlord Decisions’, U.K. Const. L. Blog (14th March 2023) (available at https://ukconstitutionallaw.org/))