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Court of Appeal Upholds Right to Rent Checks

The 'hostile environment' for illegal immigrants has been in development since 2012, when Theresa May told the Daily Telegraph, "we're going to give illegal migrants a really hostile reception". Part of the strategy enacted by the Home Office was to introduce Right to Rent checks, which brought into law in sections 20-37 of the Immigration Act 2014 (IA 2014), the requirement for landlords to check the immigration status of prospective tenants and other occupiers to verify if they have the right to be in the UK.

Right to Rent Checks was dealt something of a blow in 2019, however, when as many will recall, in the High Court case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin), it was held that such checks were discriminatory on the basis of nationality and ethnicity. Indeed, judge Spencer stated that landlords were "discriminating against potential tenants on grounds of nationality” and declared, and that:

  • Sections 20 to 37 of the IA 2014 were incompatible with Article 14 of the ECHR when reading with Article 8 of the ECHR.
  • If the Home Office decided to commence the right to rent scheme in Scotland, Wales, or Northern Ireland without further evaluation of its efficacy and discriminatory impact, it would be irrational and breach section 149 of the Equality Act 2010.

In a bid to keep the hostile environment train on the tracks, the Secretary of State appealed this decision.

The basis of the Government's Court of Appeal case

In the latest development regarding the legality of Right to Rent checks, in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, six grounds were used as the basis for an appeal against the 2019 decision, specifically:

  • The judge erred in holding that the scheme and/or the facts of this case fall within the ambit of article 8 for the purposes of article 14
  • The judge erred in finding that, on the evidence, the scheme results in discrimination on grounds of nationality and/or ethnicity; or, alternatively, in not making an adequate assessment of the discrimination so caused.
  • The judge erred in holding that the state, in the form of the Secretary of State, is responsible for any such discrimination.
  • The judge erred in concluding that any discriminatory effects of the scheme are not justified as a proportionate means of achieving a legitimate aim.
  • Even if the scheme falls within the ambit of article 8 and results in unjustified discriminatory effects for which the Secretary of State is responsible, and thus is in breach of article 14, the judge erred in granting a declaration of incompatibility in respect of the whole scheme.
  • He was also wrong to make a declaration that, without further evaluation of the efficacy and discriminatory effect of the scheme, the extension of the scheme to the other home nations would be irrational and a breach of the public sector equality duty in section 149 of the Equality Act 2010 (PSED).

The Court of Appeal decision

In relation to ground one (the 'ambit' of article 8 of the ECHR), Hickinbottom LJ made the point that Article 14 (relating to discrimination on any ground such as sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or another status) must be linked to a substantive ECHR right (i.e. article 14 is not free-standing), which in this case is Article 8. It was concluded that the facts of the case did not fall within the scope of Article 8, but there was a "more than tenuous" link with the core values protected by the Article; in other words, the facts of case fell within the 'ambit' of Article 8.

The Court of Appeal concluded that while the Rent to Rent check scheme could result in discrimination, it was capable of being used by landlords in all cases in a manner that is proportionate. In making this decision, the judges reasoned that the Right to Rent checks are not incompatible with Article 14 in conjunction with Article 8 of the ECHR. Hickinbottom LJ, who provided the lead judgment in the appeal did, however, agree with the previous finding that individuals who were made to undergo Right to Rent checks but did not have a British passport, had been unfairly discriminated against, given the landlords had done so on the basis of actual or perceived nationality. There was also an agreement with the High Court judge's view that if it had not been for the scheme, the discrimination would not have occurred.

Final words

The Court of Appeal case makes the clear point that just because the Right to Rent check scheme has, in some cases, resulted in discrimination by some landlords, the scheme itself is not unlawful. It is, therefore, for the landlord to act in a way that is non-discriminatory, and hence not in breach of the Equality Act 2010. Indeed, the Home Office had, in 2014, published a Code of Conduct for Landlord's entitled, 'Avoiding unlawful discrimination when conducting 'right to rent' checks in the private rented residential sector'. The case also reminds us of the difficulty of challenging Governmental measures that are geared towards a social and economic policy which are intended for the benefit of the public interest. In the words of Hickinbottom LJ, "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."

In response to the decision, a statement by the Joint Council for Welfare of Immigrants (JCWI) states, "the judges confirm that as a result of this scheme, it is harder for black people, ethnic minorities and migrants to rent a home than it is for white British people... 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".

It is likely that the JCWI will seek to have the matter referred to the Supreme Court, hence we do expect ongoing developments.

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