29 April 2020

Background

Over the past few years, UK governments have introduced a series of measures designed to encourage the regularisation of immigration status for persons on UK territory and ultimately the departure or removal of those who are in the UK irregularly. These provisions are known as the ‘hostile environment’ or, more recently, the ‘compliant environment’.

One of the key measures introduced has been Right to Rent checks: devolving responsibility to private landlords to determine the immigration status of all prospective adult tenants, irrespective of their nationality, by checking their immigration status prior to the start of a tenancy. Allowing an irregular migrant to occupy or rent premises may result in civil and/or criminal liability for the landlord if the prescribed checks were not undertaken.

In 2018, the charity Joint Council for the Welfare of Immigrants (JCWI) issued Judicial Review proceedings against the Secretary of State for the Home Department (SSHD), arguing that the Right to Rent Scheme was incompatible with Article 14 (prohibition of discrimination) when read with Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR). The High Court agreed and the Judicial Review was initially successful.

Court of Appeal judgment

The SSHD appealed the High Court decision, which was overturned last week by the Court of Appeal in The Secretary of State for the Home Department v. The Queen on the Application of the Joint Council for The Welfare of Immigrants [2020] EWCA Civ 542.

The Court of Appeal agreed with the High Court’s previous conclusions that foreign nationals with the right to rent but without British passports, as well as ethnic minorities (including British citizens) were the subject of discrimination by landlords. It also agreed that this discrimination was attributable to the Right to Rent Scheme. Landlords were discriminating due to “administrative convenience and a fear of the consequences of letting to an irregular immigrant”.

However, the Court of Appeal went on to consider the reasonableness of the administrative burden to landlords; the theoretic capability of the Scheme to be implemented lawfully and the ability of the discriminated ethnic minorities and migrants to eventually find suitable accommodation. After undertaking a balancing exercise between the nature and level of discrimination and the aim of reducing/deterring irregular immigration, the Scheme was ultimately deemed “a proportionate means of achieving its legitimate objective and thus justified”. There is therefore no human rights violation and no Article 8 ECHR infringement.

 What’s next

As the government appears to firmly stand behind its policy in spite of findings of discrimination (although no findings of human rights violations), JCWI indicated that it will seek to appeal the recent Court of Appeal decision in the Supreme Court.

JCWI’s ultimate aim is for the Right to Rent Scheme to be scrapped altogether, as it considers that any form of discrimination is unacceptable and that such immigration enforcement measures may risk a divisive impact in our communities, particularly when taking into account the recent lessons learned as part of the Windrush scandal.

There is also scope for the discriminatory element of the Scheme to broaden further in future. From 1 January 2021, newly arrived EU citizens will be subject to the same new immigration regime as non-EU citizens. In relation to right to rent checks, landlords will no longer be able to rely on EU passports and EU citizens will be required to either share their online immigration status under the EU Settlement Scheme or their immigration permission under the new system. Although Boris Johnson pledged that the new immigration system will ‘put people before passports’, as we have seen that some landlords have been discriminating against non-British passport holders to reduce their administrative burden, there may be an underlying risk in future of EU citizens being discriminated against due to holding an online status and no physical document showing their immigration permission.

It remains to be seen whether permission for JCWI to appeal to the Supreme Court will be granted. What is certain is that this matter will continue to grasp the public interest, with an estimated two million private landlords and an even higher number of tenants being affected by the current policy.