R (on the application of the Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department – Landlord and tenant – Human rights – Immigration – Statutory scheme imposing obligations on landlords to ensure accommodation not provided to persons disqualified by immigration status – Court ruling scheme incompatible with human rights – Appellant secretary of state appealing – Whether scheme discriminatory – Whether scheme justified – Appeal allowed
Sections 20-37 of the Immigration Act 2014 (the scheme) built on earlier provisions providing for criminal sanctions for anyone who facilitated the commission of a breach of immigration law by a non-European Union citizen. It prohibited landlords in the private rental sector from letting their properties to those who were not British, EEA or Swiss citizens and who (i) required but did not have leave to enter or remain in the United Kingdom or (ii) had such leave but only upon condition that prevented them from occupying such premises.
The respondent joint council, an independent charity, was an advocate for fairness, equality and proper respect for human dignity for immigrants. It issued judicial review proceedings against the appellant secretary of state challenging the lawfulness of the scheme, on the basis that it was incompatible with article 14 when read with article 8 of the European Convention on Human Rights. The challenge was to the validity of the statutory provisions themselves, and the alleged discriminatory consequences for those without British passports and without ethnically British attributes such as name.
The High Court granted the judicial review application. The judge held that the scheme resulted in discrimination on grounds of nationality and/or ethnicity for which the appellant was responsible. Although the facts did not fall within the scope of article 8, it was within its ambit. The appellant had failed to justify the scheme; its policy was outweighed by the potential for race discrimination.
The appellant appealed. The National Residential Landlords Association, the Equality and Human Rights Commission and the National Council for Civil Liberties intervened.
Held: The appeal was allowed.
(1) In the context of article 14, the courts recognised the difficulty in proving discrimination and took a broad-brush approach to the evidence. In the present case, on the evidence, the judge had been right to find that those who had a right to rent, but did not have British passports (or, particularly, had neither such passports nor ethnically British attributes) were the subject of discrimination on the basis of their actual or perceived nationality; and that that discrimination was caused by the scheme in the sense that, but for the scheme, that level of discrimination would not have occurred.
(2) The engagement of article 14 did not require a breach of a substantive right, for otherwise it would add nothing to the protection given by those rights and would be at most a mere reinforcing provision. Nevertheless, it had to have some relationship with a substantive right. If circumstances fell within the scope of article 8, they also fell within its ambit. Where there was an unjustified interference with rights falling within the scope of article 8(1), that was also a violation of article 14 if it was discriminatory on the basis of a relevant status.
Where a state took positive action which, while not required by article 8, demonstrated its respect for private and family life, etc, that would fall within the ambit of article 8. However, the facts of the present case did not fall within the scope of article 8 which expressly granted an individual the “right to respect for… his home”. Therefore, while a requirement for a person to move out of a particular dwelling might interfere with the article 8 rights of him and/or his family, article 8 did not in terms give any general right to a home. Therefore, there was nothing to prevent a state imposing general restrictions on the ability to find and obtain a home.
The “ambit” of article 8 had to be widely construed and was not restricted to its scope and positive modalities. The court would assume in the respondent’s favour, without deciding the point, that the facts fell within its ambit.
(3) It was common ground that the objective of the scheme was sufficiently important to justify the limitation of a protected right; the measure was rationally connected to the objective; and a less intrusive measure could not have been used without unacceptably compromising the achievement of the objective. Given that the scheme was clearly capable of being operated in a proportionate way in most individual cases, that was a complete answer to the claim on both article 8 grounds and the article 14 claim. Had it been necessary to determine the matter, the court would have concluded that parliament’s assessment, that the scheme’s adverse effects were proportionate to the benefits to the public, was manifestly without reasonable foundation: Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 followed.
However, the without reasonable foundation criterion was not determinative. Properly construed, it simply recognised that, where there was a substantial degree of economic and/or social policy involved in a measure, the degree of deference to the assessment of the democratically elected or accountable body that enacted the measure had to be accorded great weight because of the wide margin of judgment in such matters. If the measure involved adverse discriminatory effects, that would reduce the margin of judgment and thus the degree of deference, particularly where the ground of discrimination concerned a core attribute such as sex or race. In the present case, whether seen in terms of the application of the without reasonable foundation criterion or simply in terms of the usual balancing exercise inherent in the assessment of proportionality, the scheme was a proportionate means of achieving its legitimate objective and thus justified. The scheme, taken as a whole, was designed to achieve compliance with the law and at the same time designed, in pursuit of its aims, to prevent discrimination.
Sir James Eadie QC, David Pievsky QC and David Lowe (instructed by the Government Legal Department) appeared for the appellant; Phillippa Kaufmann QC and Jamie Burton (instructed by Leigh Day) appeared for the respondent; Justin Bates and Brooke Lyne (instructed by Anthony Gold Solicitors) appeared for the first intervener; Nick Armstrong (instructed by the Equality and Human Rights Commission) appeared for the second intervener; Martin Westgate QC, James Kirk and Daniel Clarke (instructed by Liberty) appeared for the third intervener.
Eileen O’Grady, barrister
