Court of Appeal finds Right to Rent scheme compatible with ECHR

Clare Cullen examines the decision in Secretary of State for the Home Department v Joint Council for the Welfare of Immigrants [2020] EWCA Civ 542.

The law

Chapter 3 of the  Immigration Act 2014 (which applies in England) prohibits private landlords from letting their properties to those who are not British, EEA or Swiss nationals and

(a) who require but do not have leave to enter or remain in the UK or

(b) have such leave but only on condition that prevents them from occupying such properties.

Where a landlord lets a property to someone who does not have a right to rent, the landlord risks a fine or criminal prosecution.

Article 8, European Convention of Human Rights (incorporated into domestic legislation by the Human Rights Act 1998) provides a right to respect for private and family life, home and correspondence. Article 14, ECHR provides that enjoyment of the convention rights shall be secured without discrimination.

Article 14 is not a freestanding provision and only relates to the enjoyment of the substantive rights (including Article 8). However, for Article 14 to be engaged, there does not have to be a breach of a substantive right (Stec v United Kingdom (2005) 41 EHRR SE18). But the facts of the case must fall “within the ambit” of one or more of the substantive rights (Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] AC 557).

Background facts

The Joint Council for the Welfare of Immigrants challenged the lawfulness of the Right to Rent Scheme on the basis that it had in unintended discriminatory consequences for those with right to rent. In particular, it was alleged that it would have discriminatory consequences for those without British passports especially those without ethnically British attributes such as a British name because landlords would end up giving preference to those with British passports. The Joint Council for the Welfare of Immigrants relied on various surveys and evaluations of the scheme which indicated a significant number of landlords would be less likely to let to someone without a British passport. This included the following:

• The Joint Council for the Welfare of Immigrants report, “No Passports Equals No Home”, 3 September 2015, where 42% of landlords surveyed said the requirements made them less likely to rent to a person without a British passport and 27% were reluctant to engage with people with foreign accents or names.
• A Shelter survey, February 2016, where 33% of landlords surveyed said it was less likely or much less likely that they would rent to someone without a British passport and 35% said it was less likely or much less likely that they would rent to someone who appeared to be or they perceived as “immigrants.”
• The Joint Council for the Welfare of Immigrants report, February 2017, “Passports please: The impact of the Right to Rent Checks on migrants and ethnic minorities in England”. This included a mystery shopping exercise. There was also a survey of landlords where 42% said they were less likely to rent to anyone who did not have a British passport (rising to 48% when they were asked to consider the criminal sanction), 51% 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.
• Residential Landlords’ Association survey in July and August 2017 where 42% said they were less likely to consider letting to a person without a British passport, 47% said they were less likely to consider letting to foreign nationals from outside the EU/EEA and 48% said that they were less likely to consider letting to someone with a time limited right to rent.
• Residential Landlords’ Association survey in June and August 2018 where 44% said they were less likely to consider letting to a person without a British passport, 20% said they were less likely to let to EU/EEA nationals and 53% said they were less likely to let to someone with a time limited right to rent.

The High Court

In the High Court, Martin Spencer J held that the Right to Rent Scheme was discriminatory on grounds of nationality or race and that such discrimination could not be justified for the purposes of Article 14 (read with Article 8).

He granted a declaration that:

• the scheme is incompatible with Article 14 (read with Article 8), and
• a decision by the Secretary of State to start the Scheme in Scotland, Wales and/or Northern Ireland without further evaluative evidence of its efficacy and discriminatory impact would be irrational and would constitute a breach of the public sector equality act duty under s.149, Equality Act 2010.

 The Court of Appeal

The Secretary of State appealed. The grounds of appeal included the following:

• The judge was wrong to hold that the scheme fell within the ambit of Article 8 for the purposes of Article 14. The Joint Council for the Welfare of Immigrants cross-appealed on the ground that the judge was wrong to hold that, whilst the scheme fell within the ambit of Article 8, there was no direct interference with Article 8.
• The judge was wrong to find that, on the evidence, the scheme resulted in discrimination on grounds of nationality or ethnicity. Alternatively, the judge did not make an adequate assessment of the discrimination.
• The judge erred in holding that the state was responsible for any such discrimination.
• The judge erred in holding that the discriminatory effects were not justified.

The Court of Appeal allowed the appeal. Lord Justice Hickinbottom and Lord Justice Henderson held that the scheme did not fall within Article 8 on its own primarily because Article 8 does not give a right to a home. They proceeded on the assumption that the scheme did, however, fall within the ambit of Article 8 so as to engage Article 14.

It was held that those who had right to rent, but did not have British passports, were the subject of discrimination for the purposes of Article 14  (read with Article 8) on the basis of their actual or perceived nationality and that the discrimination was caused by the scheme. However, the scheme was a proportionate means of achieving a legitimate aim.

In considering proportionality, it was particularly relevant that the scheme was capable of being operated by landlords in a proportionate way in all cases as they could operate the scheme without discriminating. The following was also relevant.

• The measure was an Act of Parliament implementing a socio-economic policy.
• The scheme appeared to be successful in its aims. It had more than an insignificant contribution to the aim of discouraging illegal immigration.
• In enacting the scheme, Parliament was aware of the risk of discrimination by landlords.
• The scheme did not intend, encourage or directly create discrimination.
• The administration required by landlords in checking documents was not burdensome and most landlords comply without discrimination.

The scheme was therefore not in breach of Article 14 (read with Article 8).

Lord Justice Davis agreed that the appeal should be allowed. However, he considered that the scheme was not responsible for any discrimination for the purposes of Article 14. Further, Article 14 was not engaged as the scheme did not fall within the ambit of Article 8. The connection with Article 8 was tenuous at best.

Read the judgment in full in Secretary of State for the Home Department v Joint Council for the Welfare of Immigrants [2020] EWCA Civ 542.