Right to Rent: Human Rights & Outsourcing Immigration Control

The Home Office's 'hostile environment' approach to immigration control fell under strong scrutiny in 2018, with the Windrush scandal involving the wrongful detention and deportation of members of the Caribbean community. The recent decision in Joint Council for the Welfare of Immigrants, R (On the Application Of) v Secretary of State for the Home Department highlighted that the Home Office's approach continues, and that private landlords have been deployed as an additional tier of unqualified border enforcement. The result was a 'Right to Rent' scheme that fostered rather than challenged a climate of racism and discrimination in the housing market.

Introduced under sections 20-37 of the Immigration Act 2014 (IA 2014) on a trial basis in the West Midlands, the scheme was rolled out across England in February 2016 with the aim of reducing the number of tenancies offered to those in the UK illegally. Under the scheme landlords have to check the immigration status of all adults, via a passport or visa of a tenant, to ensure they can rent a residential property. Enforcement penalties for landlords include fines up to £3,000 or a prison sentence for the criminal offence of renting to someone they reasonably believe to have no legal right to remain in the UK. Although there is a defence for the landlord to take reasonable steps to end the tenancy after becoming aware of the true immigration status of the tenant, the procedural hurdles for landlords are considerable.

The claimant carried out a 'mystery shopper' exercise by emailing landlords, using details of fictitious tenants with similar details, aside from key characteristics relating to citizenship, ethnicity and migration status. They also published a research study that cited landlords reporting that the scheme encouraged discrimination. A report of the Independent Chief of Borders and Immigration from 2016 was also submitted. The claimant argued that the scheme caused discrimination on nationality and race, with the result that non-white renters were less able to obtain properties.

The High Court held that the scheme was incompatible with Articles 8 (right to respect for private and family life) and 14 (non-discrimination) of the European Convention on Human Rights (ECHR). Article 8 gave everyone the right to seek to obtain a home. Where the State influenced this process, it had to be non-discriminatory. The scheme operated to impair the ability of an individual to acquire accommodation to enjoy a private & family life, bringing it within the scope of Article 8.

The evidence showed that landlords were discriminating against tenants due to their nationality & ethnicity, and also that they were doing so because of the scheme. The measures were disproportionately discriminatory, which would have outweighed any effectiveness of the scheme, were it not to have also been found to have little to no effect on immigration control. A declaration was made that, without further evaluation of its efficacy and discriminatory impact, a decision by the Secretary of State to expand the scheme to include Scotland, Wales and Northern Ireland, would constitute a breach of s.149 of the Equality Act 2010.

Whilst the Home Office has been granted permission to appeal, despite the decision landlords in England will still need to comply with the scheme until the government amends the IA 2014. In the interim the judgment is a reminder of the vital role the courts have in providing an accountability mechanism for legislative and policy decisions made by the State, where the operational conduit is outsourced to the private sector.