Home Office wins appeal over 'right to rent' policy after judges find scheme to be justified

The Government has won an appeal over its controversial ‘right to rent’ policy, with the Court of Appeal concluding that the scheme was justified.

The scheme is in Part 3 Chapter 1 (i.e. sections 20-37) of the Immigration Act 2014 and currently only applies to England. It built on earlier provisions providing for criminal sanctions for anyone who facilitated the commission of a breach of immigration law by a non-European Union citizen.

It prohibits landlords in the private rental sector – of whom there an estimated two million in the UK – from letting their properties to those who are not British, EEA or Swiss citizens and who (i) require but do not have leave to enter or remain in the United Kingdom or (ii) have such leave but only upon condition that prevents them from occupying such premises (collectively, "irregular immigrants").

Lord Justice Hickinbottom said: “This is one of a battery of provisions designed to encourage those who are resident in the UK to regularise their immigration status or leave the country, which include restrictions on employment, using NHS facilities, and obtaining bank accounts, driving licences etc. These are generally known as the ‘compliant environment’ or, more usually, ‘hostile environment’ provisions.”

The concern of the respondent, the Joint Council for the Welfare of Immigrants (JCWI), from the outset was not upon the effect of the proposals on those in respect of whom it was primarily targeted, i.e. irregular immigrants who are disqualified from renting private accommodation.

Rather, the concern was that the scheme would unlawfully discriminate against non-disqualified persons who had the right of abode or leave to enter/remain in the UK but did not have a British passport especially if they had attributes (such as name) which were apparently not ethnically British.

The concern, Lord Justice Hickinbottom said, was that landlords, facing potentially severe sanctions for breach, would behave defensively and prefer prospective tenants who could easily and unequivocally show that they had the right to live in the UK, and thus the right to rent, by means of a British passport.

In March 2019 Mr Justice Spencer concluded in the High Court that the scheme was unlawful. He said the Home Office had “not come close” to justifying the scheme.

The Home Office appealed on six different grounds.

In The Secretary of State for the Home Department v R (on the application of) Joint Council for The Welfare of Immigrants [2020] EWCA Civ 542 Lord Justice Hickinbottom said he had ultimately concluded that Mr Justice Spencer was “right to find that those who had a right to rent, but did not have British passports (or, particularly, had neither such passports nor ethnically-British attributes), were the subject of discrimination on the basis of their actual or perceived nationality; and that that discrimination was caused by the Scheme in the sense that, but for the Scheme, that level of such discrimination would not have occurred”.

However, he said the evidence did not suggest that it was impossible for even those against whom landlords discriminated to get private housing at all. “Whilst any discrimination on the basis of status is to be decried, the level of discrimination supported by the evidence here must not be inflated.”

Lord Justice Hickinbottom added that the nature and level of discrimination “must be kept in perspective”, which was an important factor in relation to justification.

The Court of Appeal judge said he did not consider that the facts of the case fell within the scope of article 8(1) of the ECHR (right to respect for private and family life); although, if he was wrong in that conclusion, he considered that any interference with those rights would not be disproportionate such as to lead to the conclusion that the Scheme was incompatible with article 8.

The judge said he found the question of whether the facts of this case fell within the ambit of article 8 for the purposes of article 14 (prohibition of discrimination) “far more challenging”. However, for a number of reasons, for the purposes of the appeal he was prepared to assume that they did.

Turning to the central issue of justification, Lord Justice Hickinbottom said the vital question was whether there was “an objective and reasonable justification” for the difference in treatment to which the measure (ie the scheme) gave rise.

He said the fourth limb of the test for justification set out by Lord Reed in Bank Mellat v HM Treasure (No 2) [2013] UKSC 39; [2014] AC 700 was at the heart of the appeal. This is “whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."

Lord Justice Hickinbottom said: “Given that the Scheme is clearly capable of being operated in a proportionate way in most individual cases – indeed, it seems to me that it is capable of being operated by landlords in such a way in all individual cases – in my view, this is a complete answer to the claim on both article 8 grounds (if, contrary to my view, the facts of this case fall within the scope of that article) and the article 14 claim.”

On the basis of the usual balancing exercise, the judge said he was satisfied that the scheme was justified. This was because of factors including:

  • The relevant measure was an Act of Parliament implementing a socio-economic policy, against the backdrop of EU Council Directive 2002/90/EC. “As such, very considerable deference must be afforded to Parliament's assessment of the public interest, and as to whether the adverse effects for individuals are outweighed by the public benefits of the measure.”
  • The aim of the scheme was to reduce irregular immigration by prohibiting irregular immigrants from obtaining accommodation in the private rental sector, and thus encouraging them to regularise their immigration status by obtaining leave to remain or leaving the UK. “The Scheme appears to be successful in the sense that there is no evidence that irregular immigrants do now obtain such accommodation.”
  • While the degree to which the scheme had contributed to its aim of discouraging illegal immigration was difficult to quantify – and, he accepted, more data collection and analysis might have been done in attempt to assess it – in his view, the evidence pointed towards the scheme “having made some, and more than insignificant, contribution to that aim”.
  • Mr Justice Spencer was wrong to dismiss the public benefits derived from the scheme; and to conclude, as he did, that the scheme had had "little or no effect" so far as its aim of curbing illegal immigration was concerned.
  • If the discrimination was greater than Parliament envisaged when enacting the provisions, about which he expressed no view, then that was a matter for Parliament (or the Secretary of State) to address.
  • Whilst discrimination was abhorrent, the scheme did not intend, encourage or directly create discrimination. “Indeed, far from it. The discrimination is entirely coincidental.” Although the scheme required landlords to perform checks on whether potential tenants were disqualified from occupying premises under an RTA (because they were irregular immigrants), that did not make landlords agents of the state for these purposes: they engaged in discrimination in implementing a statutory scheme as private citizens.
  • Even where discrimination is on the basis of a core attribute such as sex or race, great weight still had to be afforded to the assessment of Parliament in respect of a measure which implemented economic or social policy, and its assessment that such discrimination was proportionate to the legitimate aim of the measure.
  • The administration involved in the scheme was not burdensome. Employers had similar obligations in respect of employees, and appeared to cope without difficulty and without discrimination. The evidence was that many – most – landlords complied with the administrative requirements without discriminating. Enforcement of the scheme, and the Equality Act obligations, was essentially a matter for Parliament.
  • The nature and level of discrimination was also a relevant factor. “In short, the best evidence of discrimination which has in fact taken place comes from the RLA [Residential Landlords Association] surveys, which suggest that, over the first 30 months, 5-6% of landlords discriminated against potential tenants who did not have British passports. The evidence of likely intent produces a figure of over 40%. That discrimination will cause delay for some regular immigrants who seek accommodation in the private rental market. However, they do not necessarily become homeless: the most vulnerable may be entitled to some assistance (e.g.) under the Housing Act 1996.”

Lord Justice Hickinbottom said that “with respect to the contrary conclusion of the judge”, considering all the factors (including the discrimination to which it gave rise), whether seen in terms of the manifestly without reasonable foundation criterion or on a simple proportionality balancing exercise, he considered the scheme to be a proportionate means of achieving its legitimate objective and thus justified.

Lord Justice Henderson agreed. Lord Justice Davis gave a concurring judgment, saying amongst other things that the submission that the scheme “positively incentivises” landlords to discriminate was wrong. “The Scheme, taken as a whole, in fact is designed to achieve the opposite.”

The Joint Council for the Welfare of Immigrants (JCWI) noted that the Court of Appeal had confirmed that as a result of the scheme, it was harder for black people, ethnic minorities and migrants to rent a home than it was for white British people.

“Any amount of racial discrimination is unacceptable,” it argued.

“The Government should be doing everything in its power to stamp out discrimination – instead, it is still arguing it should be allowed to cause it.

“The Home Office has always maintained that this racial discrimination wasn’t caused by the scheme. Now we have two court rulings confirming that the Government is causing racial discrimination in the housing market against ethnic minority British people, like the Windrush generation.”

The JCWI added: “At a time when our lives depend on our ability to stay at home safely, ethnic minorities and foreign nationals are being forced by the government to face discrimination in finding a safe place for them and their families to live.

“We won’t give up until the hostile environment is scrapped. That’s why our next step is to appeal this decision in the Supreme Court.”

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