Hostile environment / Immigration and migrants' rights

Legal Intervention: Right to Rent scheme

Liberty intervened in the Joint Council for the Welfare of Immigrants’ (JCWI’s) challenge to the right to rent scheme both in the High Court and later in the Court of Appeal.

The right to rent scheme prohibits people from renting accommodation unless they can prove they have the right to reside in the UK – and it criminalises landlords who rent to people who can’t. Evidence from a trial showed that landlords were refusing to let properties to anyone without a UK passport so as to minimise the risk of falling foul of the scheme.

JCWI argued that the scheme caused discrimination on the basis of race and, in particular, nationality. The migrants’ rights organisation also wanted to stop the expansion of the scheme to the rest of the UK without a further evaluation of its impact.

Liberty submitted that the ability of an individual to acquire accommodation in which to enjoy a private and family life falls within Article 8  the European Convention on Human Rights (ECHR) (the right to respect for private and family life), and that Article 14 (no discrimination) is also engaged. We argued that the Home Secretary was liable for the fact that landlords discriminated as a result of the scheme because by putting it in place, the State had created the risk of discrimination by third parties. The Government’s own documents showed the Home Secretary had been aware of the risks inherent in the scheme since before it was introduced.

JCWI won in the High Court. Justice Martin Spencer accepted that the scheme caused discrimination and made a declaration  stating that the right to rent scheme as set out in sections 20-37 of the Immigration Act 2014 was incompatible with Article 14 ECHR in conjunction with Article 8 ECHR.

The Court also made a declaration that the Government’s decision to  roll it out in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of the Equality Act (section 149).

The Government appealed to the Court of Appeal, which overturned the High Court’s decision.  The Court of Appeal agreed that the right to rent scheme caused discrimination but that it was justified.

JCWI were refused permission to appeal to the Supreme Court and have made an application to the European Court of Human Rights.


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