Court finds obligations imposed on landlords by Government’s ‘right to rent’ scheme incompatible with ECHR


Re: R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin)

This matter considered the lawfulness of the scheme established by the Immigration Act 2014, ss 20-37 under which landlords were obliged to take measures to ensure that they did not provide private accommodation to disqualified persons – ie. a person other than a British, EEA or Swiss national who needs but does not have leave to enter or remain in the UK.

The claimants argued that the scheme cast the net too wide with the effect of causing landlords to commit nationality and/or race discrimination against those who are perfectly entitled to rent with the result that they are less able to find homes than (white) British citizens.

The court acknowledged that the State is entitled to a large margin of appreciation in relation to the scheme. This is due to the necessity of a workable immigration system involving many strands which should not be interfered with individually for fear of damaging the Government’s overall strategy, and the reluctance of the ECtHR to interfere State control of immigration. However, the court considered that these factors need to be balanced against the particular abhorrence with which racial discrimination is regarded both domestically and in Strasbourg.

The court held that the defendant did not come close to justifying the scheme. This was because, due to the sensitivity of race as a ground of ECHR, art 14, only very weighty reasons could justify discrimination on this ground. Despite recognising discrimination as a risk of the scheme, the defendant failed to list it as an inherent cost or otherwise explain how it would be offset by other benefits. The defendant also did not have a system for evaluating the efficacy of the scheme.

Therefore the court issued a declaration of incompatibility under the Human Rights Act 1998, s 4 of the Immigration Act 2014, ss 20-37 with ECHR, art 14 in conjunction with art 8. It further held that any decision by the Secretary of State to implement the same scheme in Scotland, Wales or Northern Ireland without further evaluation would be irrational and would constitute a breach of the Equality Act 2010, s 149.

Phillippa Kaufmann QC and Nick Armstrong were involved in this case.