If ever there was a petty-minded, oppressive and irrational notion it was former British prime minister David Cameron’s “right to rent” crackdown on illegal immigration, now ruled incompatible with the European Convention on Human Rights by the High Court. The 2014 legislation turned everyone letting residential property into an arm of the UK Border Agency – or an unprofessional and arbitrary backstop when the immigration authorities had failed. It even sought to give landlords supra-legal powers of eviction, to throw tenants out without a court process if the tenants could not prove their immigration status was in order (see this Al’s Law piece).
And of course landlords were likely to take the easy option of renting only to those who could produce a British passport – hence the legal claim that the whole scheme was had discriminatory effects and was therefore contrary to the ECHR.
But the judgment raises the intriguing issue of how far legislation, not in itself discriminatory or unlawful, can be deemed discriminatory when it simply prompts the discriminatory (and unlawful) behaviour of others – the landlords meant to operate the scheme.
After all, the legislation is intended to crack down on illegal immigrants, a justifiable aim in legal and even European Convention on Human Rights terms (potentially “necessary in a democratic society in the interests of national security, public safety or the economic well-being” of the country), though not necessarily according to everyone’s moral/political view. The Government believed:
“the differential treatment [of those who were in Britain legitimately but who were nevertheless rejected by landlords] serves the legitimate aim of immigration control and is proportionate to the aims being pursued, given the wide margin of appreciation [right of a state to interpret the ECHR requirements] available in cases where differential treatment is based on immigration status”.
The focus of the case was on Article 8 of the ECHR, the right to respect for family life; and article 14, requiring that rights set out in the Convention (such as Article 8) should be enjoyed without discrimination.
In declaring the legislation incompatible with the ECHR, the judge, Mr Justice Martin Spencer, has taken two leaps in the dark, relying on principles that do not seem to have much in the way of European Court of Human Rights jurisprudence to back them up.
He has asserted principles (in particular that the Government must take responsibility for the discriminatory outcomes at the hands of third parties) that one assumes will mean an appeal will follow. It will be an interesting fight. (Note: The Government has indeed been granted leave to appeal.)
Theresa May, who, as Home Secretary, introduced the provisions into the 2014 Immigration Act, is said to have a “problem” with immigration. But the attitude to race or immigration of May or Cameron in pursuing the legislative change is not the reason it has been found incompatible with the ECHR. Nor is the purpose of the legislation unlawful or incompatible. It is the fact the Government did not sufficiently take on board the probable (inevitable?) discriminatory effect, its incentive to discrimination, or act sufficiently to mitigate such an effect.
The Government was aware of the potential problem. It did an Impact Assessment before passing the legislation through Parliament, as it is obliged to under equality legislation, and acknowledged: “Heavier penalties may provoke discrimination against those perceived to be a higher risk based on an unfounded belief that the person may be a foreign national”. But it considered this risk could be met by legal migrants and landlords being supported by the Home Office through telephone and on-line guidance and advice services “to minimise the risk that legal migrants might be viewed as a greater risk than prospective tenants from within the settled population”. It produced this advice for landlords on avoiding discrimination.
The aim of the Scheme was that people in the UK (initially only England) illegally should not be able to obtain residential tenancies from landlords. Landlords were put under quite onerous obligations to check documentation with penalties if they failed to do so. Not surprisingly this layer of administration has acted to deter landlords from renting to foreigners in general and, of course, people who “look” foreign. Research suggested many would only rent to people with British passports even if those rejected were British. As Mr Justice Spencer noted:
“This is said to have been an unintended effect of the Scheme and that, in implementing the Scheme, landlords are acting in a way which is discriminatory on grounds of both nationality and race, not because they want to be discriminatory but because the Scheme causes them to be discriminatory as a result of market forces.”
Unintended or not, it was wholly predictable. This is what the Joint Council for the Welfare of Immigrants told the Government during consultation on the legislation said it would:
“serve to encourage indirect discrimination and in many cases direct discrimination. It will be far easier for a landlord to let his or her property to a British/EU national who will simply have to produce their passport to confirm status.”
The JCWI produced research in 2015 showing this is exactly what landlords were doing, but the Government’s own evaluation after a trial scheme in the West Midlands, released in February 2016 said:
“The [government] evaluation found no hard evidence of systematic discrimination towards foreign nationals from letting agents or landlords, or that their access to the housing market was restricted as a result of the Scheme.”
The JCWI was highly critical of the trial in the West Midlands and the evaluation. For example “only 62 of the 114 landlords surveyed had taken a new tenant since the implementation of the Scheme and the groups surveyed were not representative, the evaluation targeting letting agents who specialised in letting to students”. Its own report in 2017 concluded “that the Scheme was causing foreign nationals and BME people of all nationalities to experience nationality and race discrimination respectively”.
The government arguments
The Government’s case before the High Court (see outline below) was not merely that any discrimination was justified for a purpose “necessary in a democratic society”, but that Article 8 simply was not engaged. Its lawyers said Article 8 protects the right to respect for a person’s existing home, rather than the possibility of a future home.
The government lawyers were saying that if Article 8 extended to respect for the right to set up home in particular properties (hence to establish a new stage in a person’s private or family life), that would amount to a “right to a home” – which is not part of the human rights rubric in Britain or the countries covered by the ECHR.
It further claimed that the scheme did not have the discriminatory effects alleged, and if it did, it was necessary and proportionate to a legitimate aim of curbing immigration. Those with a right to rent (ie British nationals and those with residence rights) who were discriminated against were, in effect merely impeded rather than prevented from getting accommodation “for example, [if] the Scheme meant that potential tenants with the right to rent would hear back from 70% of landlords instead of, say, 90%”. Discrimination may have occurred, but there was no evidence that people were homeless as a result of it since, presumably, most landlords would do the right thing.
Finally, even if it did result in discrimination, “it is necessary to consider what the legislation requires and truly means”. This, presumably, is the point that the legislation itself is not discriminatory or unlawful and does not require discriminatory behaviour from landlords. That is the landlords’ choice, and it is an unlawful choice under other UK legislation.
Mr Justice Spencer agreed that the right to rent scheme did not directly engage Article 8. “If it did, then this would be tantamount to acknowledging that Article 8 gives a person the right to a home.” It must not be assumed that the right to family life can only be enjoyed in settled accommodation (see Demopolous v Turkey ECtHR).
But an innovative claim by the JCWI legal team under so-called “modality doctrine” found favour with the judge. The argument runs thus: if the Government positively legislates for something that, say, promotes family life (eg child care), that provision should be made without discrimination – Article 8 and Article 14 would be engaged. The claimants therefore wanted a sort of “negative” modality to be recognised to pin responsibility for discriminatory outcomes on the Government and its legislation. So “that the position should be the same where the state intervenes, not positively, but negatively, in a way which interferes with the right to respect for family life by making it more difficult for a person with the right to rent to obtain a home for him/herself and their family”.
This would seem to mean that if there is a legislated detriment with regard to Article 8 (it curbs the right to family life, but justifiably), that detriment should be felt without discrimination, ie should engage Article 14 of the ECHR. The judge suggested this would be a new category of case where legislation that:
“concerns the rights protected by the Article [here Art 8] in a negative way (perhaps, therefore a ‘negative modality’ category) as to fall within its scope and carry with it the obligations arising under Article 14”.
Although there is no direct jurisprudence on this, the judge seemed able to see the logic of it:
“The jurisprudence emanating from Strasbourg [European Court of Human Rights] suggests that race discrimination is regarded with particular anathema and if … the legislation is causing landlords to discriminate on grounds of race, then I consider that the ECtHR would agree that the bar should be set low in determining whether the Scheme comes within the ambit of a substantive right such as Article 8.”
So, Strasbourg would not wish for a too restricted interpretation of Article 8 right to family life if the issue was Article 14 discrimination (bearing in mind Article 14 piggy-backs on Article 8 – Article 8 has to be shown to be engaged before Article 14 is engaged). This would not be tantamount to giving the right to a home. Article 8 implies a right to seek a home and (via Article 14) requires that “the playing field should be even for everyone in the market for housing”.
On the issue of who is to blame for the discrimination (the Government or landlords acting autonomously), Phillipa Kaufmann QC, for the JCWI, had argued that, given discrimination would be an inevitable outcome (albeit the landlords would be acting unlawfully), the blame must be laid at the Government’s door. The scheme placed a heavy administrative burden on landlords who were in many cases able to go for the easier option – just let to British people who could show their passports. There is no direct sanction against landlords who fail to follow the government advice on avoiding discrimination.
The government submission was that the JCWI surveys were inadequate to prove any of this. The judge’s view was that the research “strongly showed not only that landlords are discriminating against potential tenants on grounds of nationality and ethnicity but also that they are doing so because of the Scheme”. The judge was impressed with the consistency of the research by various bodies, JCWI, Shelter, Crisis, and the Residential Landlords’ Association showing the discrimination.
“The extent of the discrimination is such that it is a short further step to conclude that this is having a real effect on the ability of those in the discriminated classes to obtain accommodation, either because they cannot get such accommodation at all or because it is taking significantly longer for them to secure accommodation.”
On the issue of who is responsible for discrimination, Government or landlords, Miss Kaufmann had noted the ECHR requirement on Governments to secure the rights of the ECHR and specifically pointed to “the mandatory wording in Article 14 that the rights protected under the Convention ‘shall be secured’ without discrimination”. She had said that:
“When it is the Government’s own actions in introducing the Scheme which has caused the discrimination to occur, the Government retains responsibility for that even though the discrimination is carried out by third party private individuals.”
It was therefore open to the Government to pass legislation proscribing the sort of discrimination landlords might practise as a result of the right to rent scheme – and (presumably) prosecute if necessary.
But again, argued the government lawyers, there is no ECtHR jurisprudence on this. David Pievsky, for the Government, submitted that “the voluntary intervention of a third-party landlord acting independently and indeed inconsistently with the requirements of the Immigration Act 2014 and the Codes is not consistent with there being … a causal link” between the Act and the discriminatory outcome. The judge’s answer to this was:
“It is my view that the Scheme introduced by the Government does not merely provide the occasion or opportunity for private landlords to discriminate, but causes them to do so where otherwise they would not.”
They had reacted in a logical and wholly predictable way. The guidance and telephone help had proved inadequate, and the Government could not “wash its hands” of the result. (See DH v Czech Republic  47 EHRR 3.)
Finally Mr Justice Spencer rejected the government attempt to claim justification for the policy (ie under the “necessary in a democratic society” provision) – indeed, it “has not come close”. He added:
“Even if I am wrong about that, I would conclude that, in the circumstances of this case, Parliament’s policy has been outweighed by its potential for race discrimination.”
So, however necessary it might be, the discrimination that resulted was out of proportion to the claimed benefits of the scheme in curbing illegal immigration (figures suggest it hasn’t) or freeing up housing for others.
The Government tried to argue that the scheme could be operated in a non-discriminatory way and hence should not be deemed incompatible with the ECHR, but the judge disagreed. It was intended to “bite hard” on landlords who let to those without the “right to rent” so any mitigation would undermine its whole raison d’être.
Zoe Gardner, a policy adviser at JCWI, writes on the Free Movement blog on “How we beat the hostile environment in court”
Here a lawyer who acted for one of the interveners, the Residential Landlords Association, looks at the judgment: Nearly Legal: Rights and right to rent
The judge’s orders
“In the circumstances, there will be:
i) an Order pursuant to s.4 Human Rights Act 1998 declaring that sections 20 – 37 of the Immigration Act 2014 are incompatible with Article 14 ECHR in conjunction with Article 8 ECHR; and
ii) An Order declaring that a decision by the Defendant [teh Government] to commence the Scheme represented by sections 20 – 37 of the Immigration Act 2014 in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.”
Effect of the judgment
In legal terms the judge declared the legislation (sections 20-37 of the Immigration Act 2014) “incompatible” with the European Convention on Human Rights under Article 8, the right to respect for family and private life, and under Article 14, to enjoy that right without discrimination “on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
The logic of the human rights dimension is that renters of property have the right to a private and family life inherent in setting up a home in private accommodation if they wish to and the effect of the legislation was to unfairly deny them that right because landlords would bar them if they had no British passport – or if on person had a right to be in Britain but their partner did not. That Article 8 right should, under Article 14, be enjoyed without discrimination against them.
Although Parliament is sovereign and judges cannot quash primary legislation, the declaration of incompatibility would more or less oblige the Government to repeal the legislation or amend it in such a way as to avoid the discriminatory effect – though, of course, it could defy the court and risk further legal action, particularly in the European Court of Human Rights.
In contrast, the extension of the scheme beyond England would be unlawful since it would be an administrative act (rather than the passing of primary legislation through a sovereign parliament) that the judge has deemed would be irrational “without further evaluation of its efficacy and discriminatory impact”.
However, the Government has sought and been granted leave to appeal, so this will run for some time yet.
It is pleaded that the Claimant is unable to establish any one of these propositions :
i) First , the Scheme neither engages, nor comes within the ambit of, Article 8.
ii) Secondly, the Scheme is not prima facie discriminatory on grounds of race, the Defendant disputing that wherever there is a disparate impact in some area of life , discrimination for which the state is responsible may be inferred.
iii) Thirdly, the Scheme is justified. Thus, it is asserted that the Scheme had been implemented in pursuit of a legitimate objective, namely immigration control , and represents Parliament’s considered choice on measures of social policy and strategy, namely to reduce unlawful immigration. As such the legislative policy is to be accorded due respect by the Court and the Scheme represents a proportionate means of achieving a legitimate aim.
iv) Fourthly, a declaration should be refused: even if it could be established that the Scheme causes unjustified discrimination (which is denied), it does not follow that the legislation is incompatible with Articles 8 and 14 ECHR. It is necessary to consider what the legislation requires and truly means, and even if some unintentional discrimination is caused, the relief sought is too broad and far-reaching.