European Court of Human Rights asked to consider ‘right to rent’ challenge

The application for a hearing about the Right to Rent scheme comes as a new Wendy Williams Windrush report calls on the Home Office to urgently complete its review of the Hostile Environment, which she says had a ‘devastating impact on the Windrush generation’.

The challenge is being made on behalf of a Black US citizen who has Indefinite Leave to Remain and has lived in the UK for 18 years. She argues she has suffered discrimination and homelessness because of the scheme.

She is represented by law firm, Leigh Day, and her case is supported by the Joint Council for Welfare of Immigrants (JCWI) whose challenge to the scheme at the High Court in 2019 halted its roll out beyond England. However, after the Court of Appeal overturned this decision, they were refused permission to appeal to the Supreme Court last year.

The scheme makes private landlords de facto immigration officers by requiring them to undertake immigration checks on potential tenants. Landlords who rent to disqualified people are handed out serious sanctions under the scheme.

In 2019 the High Court ruled that the scheme was incompatible with Articles 8 and 14 of the European Convention on Human Rights (ECHR) because the policy caused landlords to commit race discrimination against potential tenants who were perfectly entitled to rent. The High Court found that the Government had not “come close” to justifying the scheme and the discriminatory effects it caused.

In 2020 the Court of Appeal ruled that the policy did cause some landlords to discriminate against potential tenants on the grounds of their race and nationality, but that this discrimination was justified.

Now, without recourse to be heard in the Supreme Court, Leigh Day has asked the European Court of Human Rights to consider the policy, arguing that the discrimination is not justified.

The applicant, who wishes to remain anonymous, says she has experienced discrimination by various landlords following the implementation of the right to rent scheme, causing her to become homeless for weeks at a time. She claims she will be at risk of being affected by similar discrimination in any future attempts to obtain a tenancy.

The applicant is not a victim of the Windrush scandal. However, her lawyers believe that the concerns outlined by Wendy Williams in her latest report add weight to the merit of her request for a hearing at the European Court of Human Rights because they highlight the discrimination suffered by ethnic minority groups like the Windrush generation as a result of Hostile Environment policies like the Right to Rent Scheme, and the need for the Government to properly consider the effectiveness of such schemes.

The applicant argues:

• As the difference in treatment caused by the Scheme relates to race and nationality, the UK is required to demonstrate very weighty reasons to justify the discrimination.
• Given the extent of the discrimination, and the very limited evidence that it is effective in achieving the aim of encouraging compliance with immigration law, it is plainly not justified and the Court of Appeal was wrong in law to come to this conclusion.
• Since the Scheme causes discrimination on the grounds of nationality and race, and is not justified, it violates the applicant’s rights under Article 14.

Her position is supported by broader international law sources, including the International Convention on the Elimination of All Forms of Racial Discrimination (A2(1), A5(e)(iii)), the International Covenant on Economic, Social and Cultural Rights and the Revised European Social Charter (A2, A11(1)) and the Revised European Social Charter (Part I, para 31; Part II, A31; and Part V, Article E).

JCWI policy and advocacy manager, Zoe Gardner said:

“People should never have been pushed into dangerous homes or housing limbo because of the colour of their skin, or their nationality. But that’s effectively what this government’s Right to Rent scheme has done. We already have two court rulings confirming that the scheme causes racial discrimination against tenants, including the Windrush generation. And now, we have another powerful challenge against this dangerous and discriminatory legislation. We now hope the Court at Strasbourg sees sense and rules against a scheme which denies black and brown people fair access to safe, decent homes.”

Leigh Day solicitor John Crowley said:

“Whilst we are disappointed that the Supreme Court turned down the opportunity to hear this very important case, my client is determined to put a stop to this discriminatory policy which casts a shadow on the lives of ethnic minorities who have a right to live and rent in this country. We now take the challenge to Strasbourg and hope the Court will agree with our analysis: a Scheme which causes race and nationality discrimination by design has no place in our society.”

Counsel instructed on the case are Jamie Burton QC, Phillippa Kaufmann QC and Daniel Clarke.

Further background

The Immigration Act 2014 placed responsibility on private landlords to ensure that they did not rent accommodation to people who were disqualified from doing so, such as those without leave to remain in the UK. Landlords who did allow this to happen were liable to be fined and/or imprisoned unless they could 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 did not have the right to rent, the landlord was required to take steps to repossess the property.

The scheme was rolled out in February 2016 and under 2016 amendments to the Act, a landlord can be jailed for up to five years, and can terminate a tenancy with 28 days’ notice and evict occupiers without a court order.

From the first consultation it was pointed out that the scheme would lead to discrimination against those who had status in the UK and had the right to rent, since landlords would be likely to act cautiously in order to avoid sanctions and rely on nationality and ethnicity as a guide to entitlement. This would mean individuals with the right to rent but who, for example, did not have a British passport or did not have traditionally “British” sounding names, would be looked over in preference for those who landlords would presume definitely had the right to rent.

The Government acknowledged the risk but suggested it could be addressed by a code of practice to avoid discrimination and a service for immigration checks.

On 1 March 2019 High Court allowed the JCWI claim for judicial review and granted a declaration of incompatibility. It said landlords were discriminating against potential tenants on grounds of nationality and ethnicity because of the scheme and because of that link, the government was responsible for the discrimination. It ruled that the Scheme has had little or no effect and no reliable system had been out in place for evaluating its efficacy.

However, in 2020, the Court of Appeal found that, since the challenge was to primary legislation concerning social policy, very considerable deference should be given to Parliament’s assessment of whether the discrimination caused by the Scheme was outweighed by the public benefits. Within that context, since the Scheme had reportedly made a more than insignificant contribution to its aim of discouraging illegal immigration, the Scheme was justified.

JCWI’s application for permission to appeal to the Supreme Court was refused in May 2021.