Government's right to rent 'hostile environment' policy ruled unlawful by the High Court

A central part of the government’s ‘hostile environment’ policy, which imposes a requirement to prove a right to rent even for those with permission to live in this country, has been ruled incompatible with the Human Rights Act by the High Court today (1 March 2019).

The Joint Council for the Welfare of Immigrants (JCWI), represented by law firm Leigh Day, argued in their legal case that the right to rent scheme, which is part of the Immigration Act 2014, causes discrimination on grounds of race (both nationality and ethnicity) and is therefore incompatible with Article 14 in conjunction with Article 8 of the European Convention on Human Rights (ECHR).
 
They argued that, by placing private landlords with responsibility for immigration checks and serious sanctions for renting to disqualified people, the policy causes landlords to commit race discrimination against potential tenants who are perfectly entitled to rent.
 
The High Court agreed with JCWI’s arguments. Mr Justice Martin Spencer said in his judgment handed down this morning:
 
“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.  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.” [para105]
 
The scheme currently only applies in England and JCWI argued that it would be unlawful for the government to roll it out across the UK without first evaluating whether it is causing discrimination. The High Court agreed with the claimant’s arguments and ruled that there would be “a certainty of illegality” [para 133] if the scheme was rolled out across the UK.
 
Furthermore, the High Court criticised the government for its failure to put in place a method for evaluating the scheme. Mr Justice Spencer said: “I have come to the firm conclusion that the Defendant has failed to justify the Scheme, indeed it has not come close to doing so…But the nail in the coffin of justification is that, on the evidence I have seen, the Scheme has had little or no effect and…the Defendant has put in place no reliable system for evaluating the efficacy of the Scheme.” [para123]
 
JCWI were supported in their case by interventions from the Residential Landlords Association (RLA), the Equality and Human Rights Commission, and Liberty.
 
Permission to appeal has been granted by the High Court judge. JCWI fully intends to resist any appeal.
 
Chai Patel, Legal Policy Director of JCWI, said: 
 
“There is no place for racism in the UK housing market. Now that the High Court has confirmed that Theresa May’s policy actively causes discrimination, Parliament must act immediately to scrap it. But we all know that this sort of discrimination, caused by making private individuals into border guards, affects almost every aspect of public life – it has crept into our banks, hospitals, and schools. Today’s judgment only reveals the tip of the iceberg and demonstrates why the Hostile Environment must be dismantled.” 
 
Rowan Smith, solicitor from law firm Leigh Day added: “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.”
 

Background

 
The Immigration Act 2014 places responsibility on private landlords to ensure that they do not rent accommodation to people from abroad who are disqualified for doing so, such as those without leave to remain. Landlords who do allow this to happen are liable to be fined and/or imprisoned unless they can demonstrate they undertook prescribed checks and, where required, informed the Home Office of the disqualified person’s occupation. Furthermore, if made aware that an occupier does not have the right to rent, the landlord is required to take steps to repossess the property.
 
Before the judicial review hearing in December 2018 JCWI and other NGOs gathered evidence of the detrimental effect of the policy and presented these to the government, but it continued to refuse to carry out its own evaluations. 
 
JCWI carried out two mystery shopper exercises and in February 2017 published its research report on the scheme ‘Passport Please: The impact of the Right to Rent checks on migrants and ethnic minorities in England’.
 
The report’s main conclusions were that the scheme was causing foreign nationals and BAME people of all nationalities to experience race discrimination. Their research demonstrated that non-British tenants who have a permanent right to rent nevertheless face a clear disadvantage in comparison with their British counterparts, and landlords are unwilling to undertake online checks for those who cannot otherwise provide documentary proof of their right to rent.
 
The report also found that the most vulnerable individuals, such as asylum seekers, stateless persons, and victims of modern-day slavery, who require landlords to do an online check with the Home Office to confirm they have been granted permission to rent, face very significant barriers.