The ‘Hostile Environment’ and Human Rights
What is the Right to Rent scheme? Why was it adopted?
The Right to Rent scheme was adopted as part of the UK government’s set of ‘hostile immigration’ policies under sections 20-37 of the Immigration Act 2014, which seek to make life very difficult for migrants in the UK in order to decrease illegal immigration. The scheme requires private landlords to conduct immigration checks on potential tenants to ensure they have indefinite leave to remain in the UK. Landlords who do not comply with this obligation and who rent to people who do not possess this requirement risk serious sanctions, eg. unlimited fines or up to five years’ imprisonment. This essentially turns private landlords into border guards.
From the outset of this policy, it was noted that it would have discriminatory effects in practice because landlords would probably rely on race, nationality, and ethnicity to guide their judgment when choosing potential tenants. Where potential tenants do not have a British passport or English-sounding name, landlords might air the side of caution and not choose to rent to those individuals. Whereas landlords might assume that white people with English-sounding names have the right to rent and by choosing them, the landlord would not be facing the risk of serious sanctions.
History in the Courts
On 1 March 2019, the High Court allowed the Joint Council for the Welfare of Immigrants (JCWI)’s claim for judicial review and issued a declaration of incompatibility on the basis that the scheme was incompatible with Article 8 (right to private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR). The Court held that the scheme caused landlords to commit race discrimination against potential tenants and that the government did not adequately justify this. This decision paused the implementation of the scheme beyond England because the Court held that further evaluation of its effectiveness and the discriminatory impact was needed.
In 2020, the Court of Appeal overturned the High Court’s decision. The Court held that this case did not engage Article 8 ECHR because Article 8 does not include a right to a home, but the case did fall within the scope of Article 8 ECHR so as to engage Article 14 ECHR. It held that those who had a right to rent but did not have British passports were discriminated against for the purposes of Article 14 ECHR on the basis of their actual or perceived nationality. However, the Court found that since the scheme had made a more than an insignificant impact on the aim of reducing illegal immigration, the right to rent scheme was justified. The Court also noted that significant deference should be given to Parliament in deciding whether the public benefits outweighed the discrimination caused by the scheme. Through this policy, the government sought to support a coherent immigration system, which was an objective and reasonable justification. The JCWI submitted evidence that 42% of landlords said that the right to rent requirements meant that they were less likely to consider potential tenants who did not have a British passport. 51% of landlords surveyed said they were less likely to consider letting to those from outside the EU and 18% said they were less likely to rent to EU nationals as well. Despite this fact, the Court decided the scheme was operating in a justified and proportionate way most of the time because most landlords were complying with the law without discriminating. Therefore, while the scheme did cause some discrimination based on race and ethnicity, this discrimination was justified. Permission to appeal to the Supreme Court was denied in May 2021.
Commentary
Some believed that the High Court decision would put an end to ‘hostile environment’ immigration policies, like the right to rent scheme. However, the Court of Appeal's judgment proves this is not the case. This importance of this case is further reinforced by the discrimination suffered by the Windrush generation who have been negatively impacted by the UK government’s ‘hostile environment’ immigration policies, demonstrating the need for a proper investigation into the effectiveness of these policies. Others argued the High Court decision went ‘beyond settled law’ and overstepped its boundary into political judgments when this should be left to Parliament.
The case before the European Court of Human Rights
Since leave for appeal has been denied by the Supreme Court, the case is now being brought to the European Court of Human Rights on the grounds that the scheme is a violation of human rights under Articles 8 and 14 of the ECHR, and this interference with human rights is not justified. Therefore, it remains to be decided whether the Strasbourg Court will find the Right to Rent scheme incompatible with the ECHR. It will be interesting to see whether the Court will allow the UK a wide margin of appreciation given the socio-economic foundations of this policy.
https://www.bailii.org/ew/cases/EWCA/Civ/2020/542.html
https://ukhumanrightsblog.com/2020/04/22/government-successfully-appeals-in-right-to-rent-case/
https://www.libertyhumanrights.org.uk/issue/legal-intervention-right-to-rent-scheme/
https://www.spectator.co.uk/article/the-high-court-s-right-to-rent-decision-is-a-travesty
https://fieldcourt.co.uk/court-of-appeal-finds-right-to-rent-scheme-compatible-with-echr/
