(For transparency, I acted for one of the interveners, the Residential Landlords Association, in this case.)
This was a judicial review claim by JCWI of the Right to Rent Scheme, as brought in by Immigration Acts 2014 and 2016 and its proposed rollout to the rest of the UK beyond England. The RLA, Liberty and (by written submissions) the EHRC intervened in support of JCWI. The claim alleged that the Scheme caused landlords to commit nationality and/or race discrimination, contrary to Article 8 and Article 14 of the Convention, and that the Secretary of State had failed to carry out adequate or any evaluation of the Scheme.
To save unnecessary tension, and quite remarkably, the result was that the Right to Rent Scheme was declared incompatible with Art 8 and Art 14, and any further roll out of the Scheme without significant review and revision was not to take place.
The first, and significant, hurdle faced by the claimants was to bring the Scheme within the ambit of Article 8. Article 8 does not give a right to a home, Chapman v UK (2001) EHRR 18, and it was the discriminatory impact on people seeking a home that was at the centre of the claimant’s case.
The Secretary of State argued that “Article 8 protects the right to respect for a person’s actual, existing home, rather than the possibility of obtaining a suitable future home”.
The claimants (and Liberty) argued that this should be considered as a ‘modality’ case, as per Bah v United Kingdom (2012) 54 EHRR 21. In Bah, the ECtHR held that Article 14 also applied to “those additional rights, falling within the general scope of any Convention article, for which the Contracting State has voluntarily decided to provide.” and then:
there is no right under Article 8 of the Convention to be provided with housing. However, as the Court has previously held with regard to other social benefits, where a contracting state decides to provide such benefits, it must do so in a way that is compliant with Article 14. The impugned legislation in this case obviously affected the home and family life of the applicant and her son, as it impacted upon their eligibility for assistance in finding accommodation when they were threatened with homelessness. The Court therefore finds that the facts of this case fall within the ambit of Article 8.
However, as the SoS argued, the Right to rent Scheme was not a provision of a benefit. It was not a ‘positive modality’.
Nonetheless, the Court held:
in my judgment the Scheme does come within the ambit of Article 8, for the purposes of the right not to be discriminated against under Article 14. First, the jurisprudence emanating from Strasbourg suggests that race discrimination is regarded with particular anathema and if, which I assume for the purposes of this discussion, the legislation is causing landlords to discriminate on grounds of race, then I consider that the ECtHR would agree that the bar should be set low in determining whether the Scheme comes within the ambit of a substantive right such as Article 8. Otherwise, in circumstances where the court considers a contracting State obliged to use all available means to combat racism (see, for example, Nachova v Bulgaria  42 EHRR 43 where the ECtHR identified race discrimination as “a particularly invidious kind of discrimination” requiring special vigilance from the authorities and a vigorous reaction), a State which actually causes racism through its legislation would not be covered by the Convention. Whilst this is possible in theory, it must be very rare in practice. Secondly, to find that the legislation comes within the ambit of Article 8 would not be tantamount to finding that Article 8 gives someone the right to a home. Although Article 8 does not give anyone the right to a home, in my judgment it gives everyone the right to seek to obtain a home for themselves and their family even if they are eventually unsuccessful, and the playing field should be even for everyone in the market for housing, irrespective of their race and nationality. Where the State interferes with the process of seeking to obtain a home, in my judgment it must do so without causing discrimination and this either engages Article 8 or comes within its ambit. If the Government’s arguments were correct, a law could be passed which enacted a rule that landlords may only rent to white, British nationals and this would not engage Article 8 and therefore not offend against the Convention because Article 8 does not give a right to a home, and this would not be a positive modality case. That cannot be right. In my judgment, the law was correctly stated by Mr Westgate QC in his submissions: “the way in which the Scheme impairs the ability of an individual in general terms to acquire settled accommodation in which to enjoy a private and family life is enough to bring the scheme within the scope of Article 8”.
Once established that Article 8 and so Article 14 were engaged, the next hurdle was to establish that the Scheme itself gave rise to discrimination, not just that it gave landlords who would discriminate an opportunity to do so.
The JCWI’s research evidence showed that landlord were likely to discriminate not on a basis of race per se, but on nationality. For example, there was no different treatment between white and BME applicants for tenancy where both had a UK passport. Non-British applicants faced greater levels of refusal and those whose right to rent could not be straightforwardly demonstrated most of all. This evidence tallied with the RLA’s research evidence, that landlords were less likely to let to anyone without a UK passport, and even less likely to let to non-EU foreign nationals. This was, shortly before trial, supported by disclosure of early research results from the SoS which found that 25% of landlord would not let to non-UK passport holders.
The RLA’s evidence went to the reasons why the operation of the scheme positively encouraged landlords to make these choices. From the witness statement of David Smith:
For a landlord, any period in which a tenant is not in occupation (known as a void period) is a period where the property is an expense, not a source of income. At the risk of stating the obvious, there is no rental income. This means that the landlord must meet all the running costs (maintenance, insurance, mortgage payment, service charges) out of other income. Moreover, during a void period the landlord is responsible for council tax on the property. For all landlords, there is a pressing requirement to minimise void periods as far as possible. (…) The Scheme introduces delays in the process of assessing a potential tenant that cause landlords potential loss through increased void periods without rent. This is particularly true in relation to prospective tenants who are not able to straightforwardly evidence a right to rent.”
Add to that the civil and criminal penalties, the potential breach of mortgage terms, and potential banning orders, then the disincentives for taking any risk at all were clear.
Mr Bates (for the RLA) submitted that the primary driver for any landlord will be the amount of rent that can be recovered and that a landlord will be liable for the payment of tax and facilities even during void periods when the property is empty. The rational landlord will seek to avoid the situation and therefore anything that interrupts prompt re-letting will be avoided if possible. He submitted that the rational landlord, faced with a tenant who could move in on the day who has a British passport and one who cannot because they do not have a British passport will inevitably take the one with the British passport. He referred to the code of practice for landlords in relation to avoiding unlawful discrimination when conducting right to rent checks in the private rented residential sector (October 2014) which, he submitted, recognises that landlords might have sound business reasons not to let properties to people who cannot immediately satisfy the right to rent checks.
“If a person is not able to produce acceptable documents a landlord should not assume that they are living in the UK illegally. Subject to business requirements, landlords should try to keep the offer of accommodation open in order to provide a prospective tenant the opportunity to produce documents that will demonstrate their rights to rent, but they are not obliged to do so.”
The words “subject to business requirements” are critical: a landlord’s business requirements will inevitably be to secure a tenant as quickly and easily as possible. He therefore submitted that discrimination is inevitable by reference to basic knowledge of the way landlords operate and their business requirements.
The SoS submission, that landlords had been told not to discriminate in the guidance, and that there was a phone line and that anyway, the various research results didn’t say why landlords were discriminating, did not go down well. No, for linked reasons, did the argument that there was no demonstrated causal link between the scheme and the landlord’s discriminatory actions.
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, namely online guidance, telephone advice and codes of conduct and practice, 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. As Miss Kaufmann submitted, it is not the Claimant’s case that the obligations under the ECHR should be enforced between private citizens but that they should be enforced against the Government by reference to the Government’s own actions in introducing the Scheme.
On justification, while all parties accepted that the aim of immigration control was legitimate, discrimination on grounds of race or nationality could only be justified by the most weighty reasons.
Notably, the 2018 report of the Independent Chief Inspector of Borders and Immigration stated:
Overall the right to rent scheme is yet to demonstrate its worth as a tool to encourage immigration compliance (the number of voluntary returns has fallen). Internally, the Home Office has failed to co-ordinate, maximize or even measure effectively issues. Meanwhile, externally it is doing little to address stakeholders’ concerns.”
While the state had a large margin of appreciation in relation to the Scheme, and it was the result of primary legislation:
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. On the basis that the first question for the court to decide is whether Parliament’s policy, accorded all due respect, is manifestly without reasonable foundation, I so find. On that basis, there is no balancing of competing interests to be performed. However, even if I am wrong about that, I would conclude that, in the circumstances of this case, Parliament’s policy has been outweighed by its potential for race discrimination. As I have found, the measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect as shown by the evidence set out in, for example, paragraph 94 above. Even if the Scheme had been shown to be efficacious in playing its part in the control of immigration, I would have found that this was significantly outweighed by the discriminatory effect. 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, as Miss Kaufmann submitted, the Defendant has put in place no reliable system for evaluating the efficacy of the Scheme.
The upshot? The Scheme was not capable of being amended to avoid its discriminatory effect, so the court would not exercise its discretion not to make a declaration of incompatibility.
In the circumstances, there will be:
i) an Order pursuant to s.4 Human Rights Act 1998 declaring that sections 20-37 of the Immigration Act 2014 are incompatible with Article 14 ECHR in conjunction with Article 8 ECHR; and
ii) An Order declaring that a decision by the Defendant to commence the Scheme represented by sections 20-37 of the Immigration Act 2014 in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.
The Secretary of State was given permission to appeal and doubtless will be. The declaration of incompatibility does not affect the ongoing validity of the Immigration Act 2014, so obligatory ‘right to rent’ checks remain the law.
Nonetheless, this judgment is a major blow to the credibility and validity of the ‘right to rent’ scheme.