Social Housing Speed Read – Right to Rent
11th March, 2019
In the recent case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department the High Court considered whether the Government's Right to Rent requirements had led to nationality and/or race discrimination by landlords against applicants for tenancies of residential properties.
The Immigration Act 2014 (the 2014 Act) contained provisions prohibiting prospective tenants who did not have leave to remain in the UK from occupying premises under a residential tenancy or licence (“the Scheme”). The potential penalties against landlords who allowed such a person to occupy their property were severe, including an unlimited fine and up to five years in prison. Additionally, a landlord convicted of this offence may be banned from acting as a residential landlord and have their details added to the database of rogue landlords. In effect this meant that landlords were required to confirm that prospective tenants had the right to live in the UK. The Scheme only applied in England, not the rest of the UK.
The claimants in the case, the Joint Council for the Welfare of Immigrants (JCWI), are a charity which advocates for the rights of immigrants in the UK. They conducted research which showed that, as a result of the requirements of the Scheme, at least 25% of residential landlords now refused to rent to a prospective tenant without a British passport and a further 42% were reluctant to rent to such a person.
Following the results of this research, JCWI issued a claim against the Secretary of State alleging that the 2014 Act caused landlords to commit nationality and/or race discrimination against prospective tenants, contrary to Articles 8 and 14 of the European Convention on Human Rights (ECHR), and that the Secretary of State had failed to carry out adequate or any evaluation of the Scheme.
JCWI’s argument was that the Scheme indirectly discriminated against those seeking to rent residential properties as it resulted in landlords treating those without British passports worse than British passport holders. It argued that this was in contravention of Article 8, which protects among other things the right to respect for a person’s home, and Article 14, which states that all persons must be able to enjoy the rights granted in the ECHR without discrimination. Both Articles were relevant to JWCI’s claim as it had to be proved that a person’s right to respect for their home under Article 8 was affected before it could be considered whether the person had suffered discrimination under Article 14.
The Secretary of State argued that Article 8 protects a person’s existing home rather than simply their right to obtain a home, which is what was affected by the Scheme. In relation to Article 14, it was argued that the Scheme did not discriminate based on nationality or ethnicity, as it applied to all prospective tenants, and that it was part of a legitimate aim to control immigration. Additionally, the government had provided guidance to landlords to ensure that they did not discriminate when complying with the 2014 Act, and so any discrimination by landlords was not caused by the Scheme.
The Court’s decision
The Court held that, while Article 8 does not provide the right to a home, in the view of the Court it gives everyone the right to seek to obtain a home and that this right should be enjoyed by all persons equally, irrespective of nationality or race. As such, where the state interferes in the process of seeking to obtain a home it should ensure it does so without discriminating or causing discrimination.
In relation to Article 14, the Court agreed with JCWI’s submissions that the Scheme caused landlords to discriminate based on nationality and/or race. This was often due to the simple fact that it was much more convenient for landlords to confirm an individual’s compliance with the Scheme where that individual had a British passport. While the Scheme had a legitimate purpose, control of immigration, the Court held that the discriminatory effect was disproportionate to any benefits of the Scheme, notwithstanding that the Scheme had not been shown to have had any significant effect and so was incapable of justification.
As a result, the Court declared that the Scheme was incompatible with Article 8 and Article 14, and that any extension of the Scheme to the rest of the UK without further evaluation of its efficacy and discriminatory impact would be irrational and would be a breach of the Equality Act 2010.
The Secretary of State was granted permission to appeal the Court’s decision.
This case shows that government policies must be carefully considered before being implemented as their indirect effects may not be immediately obvious.
While the Court has declared the Scheme incompatible with the ECHR, this does not mean that right to rent checks should no longer be carried out by landlords as the Scheme remains the law until any appeals have been exhausted and the 2014 Act is amended.
As a result social landlords should ensure that they are carrying out the full right to rent checks under the Scheme when renting to tenants under their non-statutory allocations, otherwise they could be subject to the stringent penalties discussed above.
Social landlords will want to stay updated on any progress of this case, which Ward Hadaway will cover in future speed reads.
If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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