It has been seven years since Theresa May stated in a Telegraph interview her intentions create a ‘hostile environment’ for illegal immigrants. However on 1 March 2019 we saw a drawback in her plans, as one of her initial measures, the ‘Right to Rent’ scheme, was deemed to be discriminatory on the basis of nationality and ethnicity. In R(JCWI) v Secretary of State for the Home Department  EWHC 452, the High Court declared such legislation was incompatible under section 4 HRA.
The scheme, extended upon in 2016, placed landlords at a crossroads, holding them liable to prosecution if they are aware or have ‘reasonable cause to believe’ that their letting property is occupied by a tenant without the ‘right to rent’ in the UK.
Prior to the judicial proceedings, the Joint Council for the Welfare of Immigrants (JCWI) published a research report outlining the discriminatory faults of the scheme. They argued that the increased liability incentivises landlords to hold a selective bias and racial preference towards white British passport holders to minimise the risk of prosecution – a consequence which could lead to an uncapped fine and up to 5 years in prison.
Landlords fearful of breaching the law would find it more convenient to rent to those with simpler immigration histories, avoiding tenants whose statuses are more complex. It is entirely apparent that such fear would increase the likelihood of BAME individuals being unfairly discriminated against, making the rental process difficult for them. The Residential Landlords Association (RLA) has found that 44% of private landlords are now less inclined to rent to prospective tenants who do not hold a British passport. Despite presenting these findings to the government, public campaigns failed to incite a response or government evaluation of the scheme. Last March, by way of judicial review, JCWI sought:
1. A declaration of incompatibility with Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the ECHR, under s. 4 of the HRA; and either
2. (i) a quashing order against the defendant’s decision to extend the Scheme to the rest of the UK, or (ii) a declaration of irrationality, recognising that any attempt to expand the scheme nation wide would be in breach of s.149 Equality Act 2010.
The court shamed the government in their inability to justify and evaluate the scheme. This sentiment echos that of independent chief inspector of borders and immigration, David Bolt, who in 2018 claimed that the ‘Right to Rent’ scheme had ‘yet to demonstrate its worth as a tool to encourage immigration compliance.’
Spencer J found ‘not only that landlords are discriminating against potential tenants on grounds of nationality and ethnicity but also that they are doing so because of the Scheme. ’ easily coming to the conclusion that the Scheme promoted discriminatory behaviour, for it ‘does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so. ’
In their defence, the government attempted to demonstrate the proportionality of the Scheme. The Council of Europe has not defined what constitutes an appropriate balance between controlling immigration and limiting convention rights. We have seen that when considering more sensitive issues such as immigration policy, the Council acts in a more lenient manner.
Despite an arguably wider margin of consideration, Spencer J was not persuaded. He concluded that ‘the Government has not justified this measure nor, indeed, come close to doing so .’ An interesting point of contention was that the Scheme did not initially attempt to justify the necessity of discrimination. In fact, anti-discriminatory measures were implemented within the Scheme, where it was the failure of such measures which clearly worked to demonstrate the unnecessary and unjustified cost of discrimination in the name of controlling immigration.
As such, a declaration of incompatibility was granted. In addition, Spencer J also held that an extension of the Scheme would be ‘irrational and a breach of Section 149 of the Equality Act 2010. ’
Such a victory was celebrated by NGOs and human rights groups alike. See how you can help fight against Hostile Environment policies here.