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Right to Rent breaches Human Rights

On 1 March 2019, the High Court ruled that the Government’s Right to Rent scheme is discriminatory and in breach of the European Convention on Human Rights. The Right to Rent scheme was a central plank of the Hostile Environment policy, published when Theresa May was Home Secretary.

The Scheme, introduced on 1 February 2016 under The Immigration Act 2014, requires landlords to conduct checks that ensure all tenants who occupy their properties have legal status to live in the UK. Civil penalties may be imposed on those private landlords who rent out premises to illegal migrants without making appropriate checks. Where a landlord can demonstrate that they undertook specified checks regarding the migrant’s status before first granting them the rights of occupation they will have a ‘statutory excuse’ to avoid liability for a civil penalty. Currently, this Scheme is only in force in England and, since the landmark ruling, it is illegal for the Scheme to be rolled out in Wales, Scotland or Northern Ireland without further evaluation.

Discrimination cases on government policies are notoriously difficult to win and the Joint Council for the Welfare of Immigrants (JCWI), who took on the case, managed to convey the seriousness of the issues and the allegations to Mr Justice Spencer who stated “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 critical aspect of the case was the evidence collected and compiled by the JCWI and the extensive research conducted to provide independent evidence of discrimination. The research had found that fear of getting things wrong led to private landlords being less likely to rent to those without a British passport or those with limited leave to remain in the UK.

The evidence was gathered by the claimants and interveners through an experiment involving two mystery shopping exercises where identical applications were made to landlords. However, details such as names and whether they held a UK passport were changed. The aim was to determine whether decisions were being made on the basis of ethnicity or nationality. The conclusion was that those who could produce a UK passport did not face ethnicity discrimination. However, those not able to produce a UK passport, and who had ethnic or foreign sounding names, faced discrimination and were less successful in gaining a tenancy than those with British sounding names.

This provided compelling evidence that landlords, who feared possible prosecution under the Right to Rent scheme, were looking at ethnicity and nationality as a means of limiting prospective tenants. Such discrimination by landlords was described by Mr Justice Spencer “logical and wholly predictable” when faced with potential sanctions and penalties for getting things wrong. A further extensive survey showed landlords themselves said they would discriminate where a passport was not held.

The Home Office said an independent study found no evidence of systematic discrimination in its policy and that the Scheme was intended to discourage illegal residence in the UK.

What happens now? At the moment nothing changes. Although it is incompatible with the Human Rights Act, landlords still need to conduct immigration checks as the legislation is still in place. The government has been given permission to appeal this decision and an upcoming Immigration Bill (Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19) before parliament may provide further changes to the scheme.

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Louis MacWilliam

Associate and Head of Immigration
Business Immigration
LMacWilliam@LawBlacks.com
0113 322 2842
@LouisLawBlacks
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