High Court judge declares 'Right to Rent' scheme to be unlawful

The Government’s ‘Right to Rent’ scheme, which requires private landlords to check the immigration status of tenants and potential tenants, is unlawful, a High Court judge has ruled.

In Joint Council for the Welfare of Immigrants, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) Mr Justice Martin Spencer made the following orders:

1. an Order pursuant to s.4 Human Rights Act 1998 declaring that sections 20-37 of the Immigration Act 2014 are incompatible with Article 14 of the European Convention on Human Rights in conjunction with Article 8 ECHR; and
2. An Order declaring that a decision by the Home Office to commence the Scheme represented by sections 20-37 of the Immigration Act 2014 in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.

The judge said: “It is my view that the Scheme introduced by the Government does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not.

“The State has imposed a scheme of sanctions and penalties for landlords who contravene their obligations and, as demonstrated, landlords have reacted in a logical and wholly predictable way. The safeguards used by the Government to avoid discrimination…have proved ineffective.”

Mr Justice Spencer added: “In my judgment, in those circumstances, the Government cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the Scheme.”

The judge said the Home Office had “not come close” to justifying the scheme.

However, he also granted permission to appeal.

The claimant said: “JCWI has long warned that these measures increase discrimination for people of colour, people with accents and people with foreign names who will be asked to prove their immigration status even if they've lived here their whole lives.

“That’s why we took the Government to court and asked Sajid Javid to justify his and Theresa May’s reckless policy.”

It called for the Right to Rent scheme to be scrapped immediately. 

Rowan Smith, solicitor from JCWI’s law firm Leigh Day, said: “This judgment is a resounding denunciation of the legality of the Government’s flagship hostile environment policy. The judge unequivocally came to the conclusion that, where a Government scheme causes discrimination carried out by a third party, human rights law holds the Government responsible.
 
“The Home Secretary is now in the extremely unattractive position of having to find excuses as to why such obvious race discrimination is somehow justified on appeal. In declaring the scheme unlawful, the judge invited the Government to re-think the scheme. I strongly urge the Home Secretary to instruct his colleagues in the Home Office to do so immediately.”

Rebecca Hilsenrath, Chief Executive at the Equality and Human Rights Commission, which intervened in the case, said: “Landlords are not immigration officials and it is profoundly wrong to put them in that position. We provided expert advice in this case because the Government failed to take into account the impact these rules would have on people’s rights which are protected under equality legislation and under the Human Rights Act.

"If this policy had been introduced in Scotland and Wales, landlords could have been forced to racially discriminate through fear of being fined for letting a property to the wrong person.”