We have previously covered, back in March 2019, a case that was brought against the Government in the case of R (Joint Council for the Welfare of Immigrants) v Secretary of State ((1) Residential Landlords Association, (2) Liberty, (3) Equality and Human Rights Commission intervening) [2019] EWHC 452 (Admin).

This case was brought to question whether the Right to Rent scheme (e.g. immigration checks) discriminated against prospective tenants and therefore was against their Human Rights. See here our Legal Update from March 2019 which covered the first hearing in this matter for ease of reference and background.

As previously reported, the Government appealed the High Court’s original decision that the Right to Rent scheme was discriminatory and incompatible with human rights laws, on a number of grounds, and that appeal has now been decided by the Court of Appeal in favour of the Government.

The Decision

The Court of Appeal allowed the Secretary of State for the Home Department’s appeal, holding that the scheme was not unlawful as being in breach of Article 14 of the Human Rights Act (Prohibition of Discrimination) when read with Article 8 of the Human Rights Act (Right to respect for private and family life, home and correspondence).

This claim had not been brought by any individual claiming that s/he had been the victim of discrimination as a result of the operation of the scheme. Rather, it was a challenge to the validity of the statutory scheme provisions themselves.

The Court of Appeal held that the scheme was capable of being operated in a proportionate way in most, if not all, individual cases. However, even if that were not so, the discrimination to which the scheme gave rise had been justified.

The Court confirmed that, as a result of the scheme, some landlords do discriminate against potential tenants who do not have British passports and those who do not have ethnically-British attributes. Interestingly, a survey carried out by Ministry of Housing in 2018 of 8,000 landlords and agents, indicated that no more than 25% of landlords discriminated in the ways suggested by The Joint Council for the Welfare of Immigrants.

However, the aim of the scheme was to reduce irregular immigration by prohibiting irregular immigrants without the right to reside in the UK from renting in the private rental sector, and therefore encouraging them to maintain or update their immigration status by obtaining the necessary permissions to remain in the UK. The scheme had appeared to be successful in the sense that there was no evidence that irregular immigrants obtained such accommodation. While the degree to which the scheme had contributed to its aim of discouraging illegal immigration had been difficult to quantify, the evidence pointed towards the scheme having made more than an insignificant contribution to that aim.

Considering all the factors, including the discrimination to which the scheme may well have contributed, or in fact created, the Court was satisfied that the scheme was a proportionate means of achieving its legislative objective and was, therefore, justified.

Accordingly, looking at the issue of justification for the discrimination in the present case, on the basis of the usual balancing exercise, it had been justified.

Conclusion

In summary, the Court found that, by a majority of 2:1, despite there being an acceptance that some level of discrimination was being made by landlords, the ultimate goal that the scheme aimed to achieve justified the means. It was further stated that the scheme is very much workable without any level or form of discrimination. Although it is of course unsatisfactory that the scheme may cause a low level of discrimination to exist, and this was very much condemned by the Court, overall it was found that there was only a minor impact on the ability for non-British passport holders to find accommodation.

Whether this is the last that we hear about the Right to Rent scheme, and whether any other or future contests about its implementation or operation will arise to bring about any change, remains to be seen. It is also not beyond the realms of possibility that the Government may also review the scheme itself at some future date. However, as it stands, the Scheme remains in place and has been deemed lawful despite the accepted, and very much undesirable negatives that the Scheme has unintentionally created.

Should you have any questions in relation to the above, then please do not hesitate to contact Jack Morgan on Jack@kdllaw.com or 01435 897 297. 

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