Discrimination: High Court rules UK’s Right to Rent scheme incompatible with human rights

Elza Holmstedt Pell

In March, the High Court of Justice in England & Wales ruled that the UK government’s Right to Rent scheme – which obliges landlords and agents to check the immigration status of their tenants – is incompatible with human rights. The ruling adds to the mounting pressure to scrap the scheme.

Under the scheme, landlords or agents who fail to carry out appropriate checks can face civil or criminal penalties. The law was introduced in England in early 2016 as part of then Home Secretary Theresa May’s ‘hostile environment’ crackdown on illegal immigration.

The challenge to the scheme was brought by the Joint Council for the Welfare of Immigrants, with the Residential Landlords Association, the Equality and Human Rights Commission and Liberty intervening.

Normally when a UK court says something is incompatible [with human rights] you’d expect it to be suspended. I’m very surprised the Home Office hasn’t done anything to suspend it

Nicolas Rollason
Secretary, IBA Immigration and Nationality Law Committee

Mr Justice Spencer ordered that the government would breach section 149 of the UK Equality Act 2010 if it rolled out the scheme – currently only in place in England – to the rest of the UK without further evaluating ‘its efficacy and discriminatory impact’.

picture of house and words for rent

Also in March, the same judge ruled in the Goloshvili case, in which a landlord believed his Georgian tenant did not have the right to rent in the UK. The Home Office issued a Notice of Letting to a Disqualified Person (NLDP) to the landlord, but the claimant was later granted indefinite leave to remain in the country.

While Mr Justice Spencer said in this ruling that the claim was academic as the NLDP was eventually withdrawn, he gave his views that the notice had triggered discrimination on the basis of nationality.

The earlier ruling also deemed the Right to Rent scheme ineffective, agreeing with the claimants’ view that it had not been successful in addressing illegal immigration. ‘We are disappointed by the High Court judgment and are appealing on every ground. In the meantime, landlords should continue to conduct Right to Rent checks on all prospective tenants,’ a Home Office spokesperson tells Global Insight, before adding that the Home Office would meet with representatives from the landlord and letting sector in April as part of the Right to Rent Consultative Panel and that further guidance will be forthcoming.

‘It’s a strange situation,’ says Nicolas Rollason, Secretary of the IBA Immigration and Nationality Law Committee and Head of Business Immigration at Kingsley Napley. ‘Normally when a UK court says something is incompatible [with human rights] you’d expect it to be suspended. I’m very surprised the Home Office hasn’t done anything to suspend it.’

Another source said it will be interesting to see whether the government will simply appeal or whether they will at the same time try to amend part of the Right to Rent scheme to address some of the concerns voiced by opponents to the scheme. ‘We are considering options for further evaluation of the scheme,’ says the Home Office spokesperson.

Rollason says the judgment was very well-reasoned and ‘the Joint Council for the Welfare of Immigrants were able to give comprehensive evidence that discrimination was taking place.’

Adding to the robustness of the judgment is the fact that the High Court went beyond decisions handed down by the European Court of Human Rights, says David Smith, Policy Director at the Residential Landlords Association and Head of Operations at Anthony Gold Solicitors. The High Court said human rights are affected when a state intervenes negatively in a way that interferes with the right to respect for family life under Article 8 of the Human Rights Act by making it difficult for a person to obtain accommodation for themselves and their family.

In historic cases, this modality point has only been referred to when a state intervenes positively – such as by providing benefits or other means to enhance a human right – but fails to provide equal access to these means.

‘Although Article 8 does not give anyone the right to a home, in my judgment it gives everyone the right to seek to obtain a home for themselves and their family even if they are eventually unsuccessful, and the playing field should be even for everyone in the market for housing, irrespective of their race and nationality,’ the judgment said.

The timing of the appeal process is unclear, but the period of uncertainty between the recent ruling and the next hearing could be lengthy.

Finding time to discuss the issue in parliament is also a challenge. ‘The High Court can’t strike down primary legislation, it can merely say [the scheme] is incompatible with human rights and then it’s a matter for parliament,’ says Smith. ‘So we were quite keen for the government not to appeal – especially since we assume they’ll pass a new immigration bill at some point anyway [if Brexit goes ahead]’. 

‘They could have utilised this opportunity to make changes or preferably abandon the whole thing but that’s not going to happen,’ he adds. ‘The immigration bill is likely to go through before the [appeal hearing] and more parliamentary time will need to be found separately to deal with this issue.’

Landlords have been advised to continue undertaking the checks, but they are in a difficult position amid uncertainty around the future of the policy. ‘Our advice to agents is that they should be extremely careful about doing this so they don’t get claims against them,’ says Rollason.

‘The Home Office is asking landlords to do something they’re ill-equipped to do with very little training,’ says Smith.