High Court Declares Right to Rent Scheme A Breach of Human Rights

On 1 March 2019, the High Court delivered its judgment in  R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) as to the lawfulness of what is commonly referred to as the Right to Rent Scheme introduced by sections 20-37 of the Immigration Act 2014 which deals with access to residential tenancies depending on a tenant’s immigration status.

The Claimant argued that based on its research, the evidence showed that a prospective tenant who was not a British citizen but had indefinite leave to remain in the UK was more likely to receive a negative response or no response to a tenancy application compared to a British citizen. Following a further mystery shopper exercise, a further report was produced which concluded that BME tenants without a passport were more likely to receive a negative response or no response than a BME tenant with a passport and that when white and BME British citizens did not have a passport the BME tenant faced race discrimination (see paras 32-34 for a discussion of the research evidence).

The High Court held that the Right to Rent Scheme was incompatible with Article 8 ECHR (the right to respect for a person’s private and family life) and Article 14 ECHR (the right not to suffer discrimination in the enjoyment of rights under the European Convention on Human Rights) because the evidence of the disadvantage suffered by prospective tenants, i.e. they find it harder rather than impossible to get housing, was on such a scale that there would be some who will have been unable to find accommodation at all or for such a long time that their family life will have been interfered with.

The Court was satisfied that the discrimination that was taking place had a sufficient causal link with the Right to Rent Scheme based on all the evidence put before the Court. It was notable that the Residential Landlords Association submitted evidence to the Court that the Right to Rent Scheme introduced delays in the process of assessing a potential tenant that had caused landlords losses through increased void periods without rent. As a result, the primary driver for landlords was economic: they could avoid the potential civil and court sanctions and delays by renting to British passport holders.

The decision represents the first time that a court (domestic or otherwise) has found that where a state takes a negative action as opposed to a positive action in relation to a Convention right (in this case by making it more difficult for a person with the right to rent to obtain a home for him or herself or their family), it must do so in a non-discriminatory way. This represents an extension of the “modality” cases.

The Court was persuaded to extend the modality doctrine for the following reasons:

• Race discrimination is regarded by the Convention caselaw as particularly offensive and therefore a low threshold should be set as to whether the case engaged Article 8 ECHR which it must be remembered does not guarantee the right to a home.

• Although Article 8 ECHR did not give anyone a right to a home, it was the Court’s view that it does give everyone a right to seek to obtain a home for themselves and their family even if they are ultimately unsuccessful and there should be a level playing field for everyone in the housing market regardless of their race and nationality.

Finally, the decision is important because the UK Government had intended to roll out the Right to Rent Scheme in Scotland, Wales and Northern Ireland. At paragraph 131 of its judgment, the High Court held that despite the fact that a decision to roll out the Right to Rent Scheme to the devolved territories had not been made, the clear intention of the Government to do so meant that the Court was satisfied it was appropriate to grant a declaration that there would be a breach of the Public Sector Equality Duty under s.149 Equality Act 2010 if there were no further evaluation of its efficacy and the discriminatory impact.

So where does this leave us now? The decision does not mean that the Government will abolish the Right to Rent Scheme. However, it will need to consider a further evaluation before it can roll out the Right to Rent Scheme to Scotland, Wales, and Northern Ireland. The reality is that the Government will be forced to pilot any amended scheme in England first and assess that before rolling it out to the devolved territories. In those circumstances, it is unlikely that we will see the introduction of the Right to Rent Scheme in the devolved territories in the immediate future.

Furthermore, landlords and tenants need to be aware that a declaration of incompatibility does not remove the law under section 20-37 of the Immigration Act 2014 and the law will continue to apply until Parliament removes the incompatibility.