The government’s right-to-rent scheme has been deemed lawful on appeal. Elizabeth Dwomoh considers the ruling.
Sections 20 to 37 of the Immigration Act 2014 introduced the right-to-rent scheme (the scheme). Under the scheme, landlords in the private rented sector in England are prohibited from renting their properties to non-British, EEA or Swiss citizens who do not have leave to remain in the UK or whose leave is subject to a condition that precludes them from renting. A breach of the terms of the scheme is a criminal offence, carrying a maximum sentence of five years’ imprisonment and/or a fine.
The High Court challenge
In a challenge to the lawfulness of the scheme, a case was brought by the Joint Council for the Welfare of Immigrants (JCWI). JCWI alleged that the scheme unlawfully discriminated against those who had a right to rent but did not have a British passport and/or “had attributes (such as name) which were apparently not ethnically British”.
In particular, JCWI argued that due to the severe penalties for breaching the scheme, landlords were choosing to rent to prospective tenants who could “easily and unequivocally” show that they had a right to live in the UK, and lawfully rent, by means of a British passport.
JCWI succeeded before the High Court. Mr Justice Martin Spencer declared that the scheme was incompatible with Article 14 of the European Convention on Human Rights (ECHR) read with Article 8 of the ECHR. Further, the decision of the secretary of state to roll out the scheme across the UK without any further evaluation of its discriminatory effect was irrational and a breach of section 149 of the Equality Act 2010 (the 2010 Act).
The grounds of appeal
The secretary of state appealed on the basis that the judge erred on the following grounds:
- Finding on the evidence that the scheme resulted in discrimination on the grounds of nationality and/or ethnicity; or alternatively not making an adequate assessment of the discrimination so caused. Further, the judge erred in finding that any discrimination caused was the responsibility of the secretary of state (the causation ground).
- Holding that the scheme and/or the facts of the case fell within the ambit of Article 8 for the purposes of Article 14 of the ECHR (the ambit ground).
- Concluding that any discriminatory effects of the scheme were not justified as a proportionate means of achieving a legitimate aim (the justification ground).
- Granting a declaration of incompatibility in respect of the whole scheme and declaring that a roll-out of the scheme without further evaluation of its discriminatory effect was irrational and breached section 149 of the 2010 Act (the remedies ground).
The JCWI cross-appealed on the basis that the judge was wrong to find that prospective tenants who were discriminated against as a result of the scheme had not suffered a breach of their rights under Article 8 of the ECHR.
Lawfulness of the scheme
In R (on the application of the Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542; [2020] PLSCS 70, the Court of Appeal allowed the secretary of state’s appeal. JCWI’s cross-appeal was dismissed.
On the causation ground, the Court of Appeal upheld the High Court’s finding that as a result of the scheme some landlords discriminated against potential tenants who had a right to rent but did not have a British passport nor “ethnically British attributes such as name” on the basis of their actual or perceived nationality.
The Court of Appeal was, however, unable to agree with every aspect of the High Court’s approach or findings in relation to the evidence. In particular, the Court of Appeal found troubling the proposition that it was “rational” or “logical” for landlords to discriminate against those without British passports and/or apparent “ethnically British attributes such as name”. The evidence showed that the majority of landlords were able to comply with the scheme without unlawfully discriminating against prospective tenants who were actually or apparently non-British.
In respect of the ambit ground, the Court of Appeal dismissed JCWI’s cross-appeal. In agreement with the High Court, it found that the facts of the case did not fall within the scope of Article 8 of the ECHR because there was no general “right to a home” guaranteed by that article.
A more challenging question for the Court of Appeal was whether the facts of the case fell within the ambit of Article 8 for the purposes of Article 14 of the ECHR. The Court of Appeal was unwilling to determine the issue, but assumed it did for the purposes of the appeal.
The justification ground was effectively the key ground. Because the challenge was to a legislative measure, it would only be declared unlawful if it was incapable of being operated in a proportionate way in nearly all cases. The Court of Appeal found the scheme was capable of being operated proportionately in all cases. Further, on balance, the scheme was a proportionate means of meeting the legitimate aim of controlling illegal immigration.
In light of the above finding by the Court of Appeal, the secretary of state succeeded on the remedies ground and the declarations were set aside.
Elizabeth Dwomoh is a barrister at Lamb Chambers
