Elizabeth Dwomoh discusses a decision on the unlawfulness of the government’s right-to-rent scheme
Key points
- Article 8 of the ECHR gives the right to seek to obtain a home
- Landlords are discriminating against tenants on grounds of nationality and ethnicity due to the right-to-rent scheme introduced by the government
- Scheme declared incompatible with the ECHR, but remains in force for now
The right-to-rent scheme (the scheme) was introduced under sections 20 to 37 of the Immigration Act 2014 (the 2014 Act). At present, the scheme is only in force in England. The scheme formed part of the government’s “hostile environment” established to prevent illegal immigrants from obtaining residential accommodation.
Under the 2014 Act, a landlord must verify the immigration status of a prospective tenant to ensure that they are not granting a residential tenancy agreement to a disqualified person. A disqualified person is an individual other than a British, EEA or Swiss national who needs, but does not have, leave to enter or remain in the UK. Before granting a tenancy, a landlord must obtain and verify a prospective tenant’s identity documents to ensure that they have leave to enter and/or remain.
A landlord who authorises a letting to a disqualified person, knowing or having reasonable cause to believe that they are disqualified, is liable to be fined or imprisoned. Under the Immigration Act 2016 (the 2016 Act) a landlord must also take reasonable steps to terminate a letting to a disqualified person, by evicting them, in certain circumstances, without a court order.
The challenge
In R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452, the lawfulness of the scheme was challenged by the Joint Council for the Welfare of Immigrants (JCWI). The JCWI alleged that the scheme caused landlords to discriminate against prospective black, Asian and minority ethnic (BAME) tenants on the grounds of race and/or nationality. The Residential Landlords Association, the Equality and Human Rights Commission and Liberty all intervened in support of the JCWI.
Research submitted by the JCWI demonstrated that under the scheme “non-British tenants who had a permanent right to rent faced a clear disadvantage in comparison to their British counterparts”. The research evidenced that landlords were unwilling to undertake online checks for individuals who could not otherwise provide documentary proof of their right to rent.
The JCWI sought a declaration under section 4 of the Human Rights Act 1998 (the 1998 Act) that sections 20 to 37 of the 2014 Act were incompatible with Articles 8 and 14 of the European Convention on Human Rights (ECHR). They also sought an order quashing the decision of the home secretary to roll out the scheme to Scotland, Wales and Northern Ireland because it gave rise to an inherent and unacceptable risk of illegality and breached the public sector equality duty under section 149 of the Equality Act 2010 (the 2010 Act). Alternatively, the JCWI sought a declaration that the decision to roll out the scheme beyond England, without further evaluation of its discriminatory impact, was irrational and a breach of section 149 of the 2010 Act.
Unlawfulness of the scheme
It was held in Chapman v UK [2001] 33 EHRR 18 that the right to respect for a person’s home under Article 8 of the ECHR did not extend to a right to be provided with housing. It was argued on behalf of the home secretary that Article 8 of the ECHR was not engaged here: Article 8 protected the right to respect for a person’s existing home rather than their future home. It was argued, further, that a disadvantage in securing a new tenancy was not an interference with the rights protected by Article 8. To find otherwise would be an extension of European and domestic jurisprudence.
In finding against the home secretary, the High Court determined that Article 8 was engaged. Race discrimination was anathema. Any legislation found to cause it should result in a low bar being set to determine whether it came within the ambit of Article 8. Although Article 8 did not guarantee the right to a home, it did guarantee an individual the right to seek to obtain a home. That should be achieved on the basis of a level playing field irrespective of race and nationality. The manner in which the scheme impaired the ability of an individual to acquire settled accommodation in which to enjoy a private and family life brought it within the ambit of Article 8.
Research submitted by the JCWI and other non-governmental organisations showed that landlords were discriminating against potential tenants on the grounds of ethnicity and/or nationality because of the scheme. The High Court found the research to be highly persuasive.
The home secretary argued that the government did not have a positive obligation to prevent acts of discrimination committed by third parties such as landlords. This argument was dismissed and the government was held to be responsible. It had introduced the scheme without providing adequate safeguards to prevent the discrimination that was occurring. The scheme had little or no efficacy in reducing illegal immigration and the government had failed to implement a reliable mechanism for evaluating its effectiveness.
A declaration of incompatibility was made pursuant to section 4 of the 1998 Act.
Irrationality
The High Court also declared that the decision to roll out the scheme to Scotland, Wales and Northern Ireland, without any further evaluation of its discriminatory effect, was irrational and a breach of section 149 of the 2010 Act. Based on the effects in England, the evidence suggested that there would not be just a mere risk of illegality but a certainty of illegality if the scheme was rolled out further afield.
The home secretary has been granted permission to appeal on all grounds. In the meantime, although serious doubt has been cast on the appropriateness of the scheme, it remains in force. Landlords and their agents are still required to make the relevant checks to comply with their duties under the 2014 and 2016 Acts.
Elizabeth Dwomoh is a barrister at Lamb Chambers
