A high court judge today gave the green light to a legal challenge to a scheme that obliges landlords to check the immigration status of tenants.
Judge Mr Justice Sir Robert Jay gave campaign group the Joint Council for the Welfare of Immigrants (JCWI) permission to bring a judicial review of the policy, following a court hearing this afternoon.
The campaign group is challenging the “Right to Rent” scheme, part of the Conservative government’s so-called “hostile environment” immigration policy. The scheme makes landlords responsible for carrying out immigration checks on tenants.
JCWI has long campaigned against the policy, which was introduced in England in 2016, and has been threatening legal action for at least a year. The scheme hasn’t yet been extended to the rest of the UK.
At a hearing at the high court in London today, lawyers for the group asked Mr Justice Jay for permission to bring a judicial review of the policy.
The group claims that the policy is unlawful because it encourages “systematic discrimination” against foreign nationals, British citizens without passports, and British black and minority ethnic tenants.
The group published a report into the policy last year. It found that 51% of landlords surveyed said the scheme wold make them less likely to consider letting to foreign nationals.
At today’s hearing, Phillippa Kaufmann QC, for the JCWI, told the judge that the “legislation indirectly causes landlords to discriminate against foreign nationals… despite the Equality Act” and the Human Rights Act, which ban it.
She said that, while the legislation wasn’t intended cause discrimination, “the nature of the scheme is such that individuals, as is to be expected, are de facto discriminating”.
This is because “the scheme creates a number of complicated hurdles…” for landlords “with criminal penalties for non-compliance” that are causing them to “take the path of least resistance” and let their properties to people with British passports.
David Pievsky, for the government, disputed this, arguing that the legislation was not intended to be discriminatory, and is “clearly capable” of being interpreted in a non-discriminatory way.
“There is no suggestion that the legislation in directly discriminatory,” he said. “Nor is it suggested that the legislation, in its proper construction, requires landlords to commit racial discrimination.
“If they are misunderstanding the scheme, is it the state that is doing the discrimination?” he said.
He said that some discrimination pointed to by the JCWI may have nothing to do with the legislation.
“One must start with the proposition that some landlords have always considered passports to be the best form of identification… and some landlords who have less modern views about discrimination,” he said.
At the end of the hearing, Jay J said he had been “just about persuaded” to allow the challenge to go ahead.
“The challenge is certainly an ambitious one,” he said, because the claimants are seeking a declaration of incompatibility that covers the whole scheme.
“The claimants may have an uphill task on evidence,” he said. Even so “there are points here worthy of consideration”.
The full hearing will take place later this year.
The Queen on the application of Joint Council for the Welfare of Immigrants v Secretary of State for the Home Department
Administrative Court (Jay J) 6 June 2018
