The Government’s ‘Right to Rent’ Scheme, introduced in England under SS. 20 -37 Immigration Act 2014 (as amended by the Immigration Act 2016), makes it unlawful for a landlord to let a property to a person who, due to not having leave to remain in the UK, is ‘disqualified’ from renting a property. A landlord who knows or has reasonable cause to know that a person does not have the requisite immigration status commits an offence punishable by up to five imprisonment and/or an unlimited fine. These provisions, which require landlords to carry out immigration checks on potential tenants, formed part of the ‘hostile environment’ introduced by the Government to encourage irregular immigrants to leave the United Kingdom.
The Joint Council for the Welfare of Immigrants (‘JCWI’), with interventions from Liberty, the Equality and Human Rights Commission and the Residential Landlords Association, sought a declaration that the ‘Right to Rent’ Scheme was incompatible with Articles 8 and 14 European Convention on Human Rights (the right to respect of a person’s home and the prohibition of discrimination) together with an order quashing the Home Secretary’s decision to extend the scheme to other parts of the UK, at any rate not without further evaluation.
The JCWI had carried out tests, including a mystery shopping exercise, that indicated that landlords were favouring potential ‘white British’ tenants over persons from ethnic minorities or with other nationalities but with no restrictions on renting.
The High Court allowed the applications, holding that: the Scheme came within the ambit of Article 8 ECHR; the evidence showed that the Scheme encouraged landlords to discriminate against potential tenants on the grounds of nationality and ethnicity; the Government was responsible for the discriminatory effect of the Scheme; the Government had not come close to justifying the Scheme and the objective of immigration control was significantly outweighed by the discriminatory effect of the Scheme, which had little or no effect on controlling immigration. Further, the Court held that the extension of the Scheme to other parts of the UK without evaluating its efficacy would be irrational and a breach of the Public Sector Equality duty under s. 149 Equality Act 2010. The Court made a declaration of incompatibility.