The High Court has ruled that the government’s Right To Rent scheme breaches human rights law in a damning verdict on government immigration policy.
This morning (1st March), Mr Justice Martin Spencer ruled that the scheme breached the European Convention on Human Rights on the basis that it led to discrimination against non-UK nationals with the right to rent and British ethnic minorities.
Referring extensively to argument and evidence provided by the RLA, Justice Spencer concluded that discrimination by landlords was taking place “because of the Scheme”.
He went on to conclude that “the government’s own evaluation failed to consider discrimination on grounds of nationality at all – only on grounds of ethnicity”.
Under Right To Rent, landlords are responsible for checking the immigration status of their tenants with the prospect of prosecution if they know or have “reasonable cause to believe” the property they are letting is occupied by someone who does not have the right to rent in the UK.
It was introduced by Theresa May as Home Secretary as a key plank of the government’s ‘hostile environment’ for illegal immigrants.
The Residential Landlords Association (RLA) joined with Liberty to intervene in a case brought by the Joint Council for the Welfare of Immigrants (JCWI) to have the policy declared as incompatible with human rights on the grounds that it was leading to discrimination against non-UK nationals, who might be in the country legitimately, and British ethnic minorities.
Recent research by the RLA found that the fear of getting things wrong led to 44% of private landlords being less likely to rent to those without a British passport.
It found also that 53% of landlords were less likely to rent to those with limited time to remain in the UK, while 20% said that they were less likely to consider letting property to EU or EEA nationals.
Similar findings have been found by the JCWI.
Significantly, during the course of the case, government research emerged which confirmed a significant proportion of landlords were unwilling to rent to people without British passports.
In court, Justice Spencer continued by finding that the Right To Rent “does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not”, describing such discrimination by landlords a being “logical and wholly predicable” when faced with potential sanctions and penalties for getting things wrong.
He concluded: “The safeguards used by the government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective.
“In my judgment, in those circumstances, the government cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the Scheme.”
The ruling follows a report published last year by David Bolt, Independent Chief Inspector of Borders and Immigration, which concluded that Right To Rent has “yet to demonstrate its worth as a tool to encourage immigration compliance” and that the Home Office was “failing to coordinate, maximise or even measure effectively its use, while at the same time doing little to address the concerns of stakeholders”.
Academics at Oxford University suggest the foreign-born population is almost three times as likely to be in the private rental sector compared to the UK-born population.
The RLA and the JCWI have written to the Home Secretary seeking an urgent meeting.
John Stewart, Policy Manager for the Residential Landlords Association, said: “Today’s ruling is a damning critique of a flagship government policy. We have warned all along that turning landlords into untrained and unwilling border police would lead to the exact form of discrimination the court has found.
“We call on the government to accept the decision, scrap the Right To Rent, and consider what else can be done to sensibly manage migration, without having to rely on untrained landlords to do the job of the Home Office.”
Chai Patel, Legal Policy Director for the Joint Council for the Welfare of Immigrants, said: “There is no place for racism in the UK housing market.
“Now that the High Court has confirmed that Theresa May’s policy actively causes discrimination, Parliament must act immediately to scrap it.
“But we all know that this sort of discrimination, caused by making private individuals into border guards, affects almost every aspect of public life – it has crept into our banks, hospitals, and schools.
“Today’s judgment only reveals the tip of the iceberg and demonstrates why the Hostile Environment must be dismantled.”
Lara ten Caten, Liberty solicitor, said: “Today’s victory is another nail in the coffin for the government’s misguided, discriminatory and unworkable hostile environment policy.
“While effective immigration control is a legitimate aim for any government, the Home Office must stop outsourcing its discriminatory policies to third parties who are ill-equipped to enforce them but may be slapped with heavy fines and even end up in prison if they don’t.
“Landlords are not border guards – the government must now scrap this shameful scheme and not waste any more taxpayer money on an appeal.”
Chris Norris, director of policy and practice at the National Landlords Association (NLA)said: “The court ruling confirms the NLA’s argument that this legislation encourages landlords to discriminate based on an individual’s nationality, leading to administrative bias.
“We hope the ruling will force the government to rethink this damaging and unfair policy that makes landlords feel they must behave like border control officers.”
Green Party MP Caroline Lucas said: “Right to Rent was always discriminatory by design. Forcing landlords to check tenants’ passports and face criminal sanctions for renting to the wrong person encourages even suspicion of anyone who doesn’t look or sound typically British.”
A Home Office spokesperson said: “We are disappointed with the judgment and we have been granted permission to appeal, which reflects the important points of law that were considered in the case – in the meantime, we are giving careful consideration to the judge’s comments.”