On 1st March 2019, the High Court ruled in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) that the Government’s so-called “Right to Rent” checks, part of the “compliant environment” policy, are certain to cause landlords to discriminate on racial and nationality grounds.
Mr Justice Spencer said that the Government had “not come close” to justifying such discrimination (such as in the interests of effective immigration control) because there was no evidence of any effort to demonstrate how the checks were effective in achieving the aim of preventing illegal immigration. He remarked that no data had even been collected.
The Court stopped short of expanding Article 8 (European Convention on Human Rights) to afford a right to a home but said that the Article did give everyone a “right to seek to obtain a home” and that there should be a level playing field in doing so. The Judge attributed the discrimination to the Government and not, as the Government argued, to the Landlords implementing the policy. He said that the Government could not “wash its hands of responsibility”.
On 15th March, in a jointly heard case, in R (Goloshvili) v Secretary of State for the Home Department [2019] EWHC 614 (Admin), the High Court said that the issuance of a Notice of Letting to a Disqualified Person (“NDLP”) (a document obtained by a Landlord from the Home Office in order to justify ending a tenancy or seeking possession of a property, occasionally without requiring prior Court approval) amounted to direct discrimination based on nationality under the Equality Act 2010. However, Mr Justice Spencer also confirmed that nationality discrimination for the purposes of immigration control is exempt from the Equality Act 2010 because Section 33D(2) of the Immigration Act 2014 gave express authorisation to issue NLDPs. Such exemption does not apply to members of the public.
The Immigration Minister, Caroline Noakes, gave a Ministerial Statement to both Houses on 5th March in which she confirmed the Government had been granted an appeal to the decision and that the Right to Rent Consultative Panel will “look at the operation of the Scheme”. The Panel will also review the Right to Rent guidance, available via the .Gov website for Landlords. Until the appeal is heard, or until the Government changes its policy, the obligations on landlords to check every individual’s right to rent still apply.
Effective immigration control has been shown to be a justification for discrimination in Right to Work checks and the decision in Goloshvili suggests this may be the same for Right to Rent checks (for the Government, at least). Some will hope the judgments could begin the unravelling of the Government’s “hostile” environment policy, particularly in light of Brexit and the potential for millions of EEA nationals to be subjected to a tough compliance environment.