On 1 March the High Court released its decision in the case of Joint Council for the Welfare of Immigrants (JCWI) against the Secretary of State for the Home Department. The High Court has held that the Right to Rent policy is unlawful. This is a summary of the judgement which can be read in full here.
JCWI’s Claim
The JCWI issued proceedings seeking the following:
- A declaration that the Right to Rent (RtR) policy is incompatible with Articles 8 and 14 of the European Convention of Human Rights (ECHR); and
- An order:
- Quashing the Secretary of State’s (SoS) decision to extend the Right to Rent policy (RtR) to the rest of the UK on the grounds that the policy gives rise to an inherent and unacceptable risk of illegality because it breaches s.149 of the Equality Act 2010, alternatively
- Declaring that a decision by the SoS to commence the policy in the rest of the UK without further evaluation of its discriminatory impact would be irrational and a breach of s.149 Equality Act 2010.
The Law
Article 8 ECHR provides:
“..Everyone has the right to respect for his private and family life, his home and his correspondence..”
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour……..”
s.149 of the Equality Act 2010 provides:
“1. A public authority must, in the exercise of its functions, have due regard to the need to –
- eliminate discrimination, harassment, victimisation and any other conduct…”
The Decision
The High Court held that the right to rent is unlawful. The arguments put forward in defence of the policy are lengthy so we will attempt to summarise them throughout this section.
The Court found that the evidence showed 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 policy. The Home Office argued before the court that discrimination was not taking place however, this was contradicted some of their own independent evaluations which found that the scheme was causing discrimination and could potentially fall foul of Art. 8.
Article 8 does not give anyone the right to a home. However, the court held that it gives people a 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 people irrespective of their race and nationality. Where the state interferes with this right then it can only do so without causing discrimination which engages Article 8 or comes within its ambit.
In defending the Article 8 argument the SoS argued that it was landlords that were carrying out any alleged discrimination and not the government and that Article 8 applies only to people who already have a home which needs protecting and not to those seeking a home. However, the court found that Liberty who intervened in this case correctly stated the law when they argued:
“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.”
To support their case the JCWI relied on the results of their own surveys and mystery shopper exercises. In considering the results the court found that discrimination was evident and the causal link with the policy was not only asserted by the landlords taking part in research but is a logical consequence of the policy. In contrast the court accepted that the Government’s own evaluation failed to consider discrimination on grounds of nationality at all, only on grounds of ethnicity and that the evaluation failed to ask the right questions.
In considering all the evidence from the JCWI, Shelter, Crisis and the Residential Landlords Association amongst others, the court held that the policy is having a real effect on the ability of those in the discriminated classes to obtain accommodation, either because they cannot get such accommodation at all or because it is taking significantly longer for them to secure accommodation.
As mentioned above the SoS also argued that they cannot be held responsible for the discrimination because it was being committed by a third party, that is landlords. However, the court held the SoS’s policy did not merely provide the occasion or opportunity for private landlords to discriminate but caused them to do so where otherwise they would not do so. The government has imposed sanctions and penalties for landlords who contravene their obligations and they have reacted in a logical and predictable way. This conclusion was supported by various surveys and evaluations. The government’s safeguards against such discrimination, namely online guidance, telephone advice, and codes of practice have proved to be ineffective. The government cannot therefore wash their hands of responsibility in these circumstances by arguing that the discrimination is being carried out by a third party.
The government also attempted to argue that even if there was discrimination occurring it was justified on the grounds that they had a right to control immigration. Justification and the right to control immigration have both been recognised by the European Court of Human Rights. However, the court held that the consequence of the policy is racial discrimination which the government was anxious to avoid. Certainly, a declaration of incompatibility might be welcomed so that the government can then re-think its strategy and see how the same aims can be achieved with the effect of discrimination. As such the court also did not consider it appropriate to give the SoS any discretion to apply the policy in a non-discriminatory way because the policy will inevitably lead landlords down the path of discrimination and operate in a way which is incompatible with the ECHR.
Accordingly, the JCWI obtained a declaration that the Right to Rent was incompatible with the European Convention on Human Rights and an order restraining the government from rolling it out to Wales and Scotland. The SoS sought and has received permission to appeal to the Court of Appeal.
Published 7 March 2019
