The British government has won an appeal against claims that its Right to Rent policy is unlawful for being racially discriminatory
Last year the high court in the UK found that requiring landlords to check the immigration status of prospective tenants was unlawful and racially discriminatory because it caused landlords to discriminate against British citizens from minority ethnic backgrounds and foreign nationals who had a legal right to rent. The so-called Right to Rent policy is a key element of the Home Office’s aim of creating a “hostile environment” for migrants in the UK as a way of deterring illegal immigration. Landlords who fail to complete the necessary checks face fines and up to five years in prison.
In delivering the lower court’s ruling in March 2019, Mr Justice Martin Spencer found that scheme had a disproportionately discriminatory effect incompatible with the Human Rights Act 1998 and the right to freedom from discrimination enshrined in EU human rights legislation.
On appeal, the court accepted both argument and evidence put forward by the Joint Council for the Welfare of Immigrants (“JCWI”) that landlords faced with choosing between prospective tenants who can be easily identified as British either through readily discernible ethnic markers or the possession of a British passport and others will discriminate in favour of obviously British persons for administrative convenience and to avoid the risk of being penalised under the scheme. The JCWI had also produced evidence to show that because just under half of landlords behave in this manner, it may take on average twice as long for a migrant or a person from a minority ethnic background to find housing in the private rental market as compared to their white British counterparts. The JCWI opposing the government’s appeal had also argued that the state is responsible for the discriminatory effects of its policy even if unintended.
Although the appeal court agreed that as a result of the scheme some landlords discriminated against potential tenants, the judges ruled that the scheme was still justified as a proportionate means of achieving the legitimate objective of deterring irregular immigration in the interest of the public as a whole. The judges ruled that although some landlords may discriminate out of a fear of the consequences of letting to an irregular immigrant, most landlords complied with the requirements without doing so and as such the scheme made more than an insignificant contribution to the overall aim and any discriminatory acts did not make the scheme as a whole unlawful.
The JCWI will appeal the ruling at the supreme court.
