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Government's 'hostile environment' challenged in the High Court over right to rent

A campaign group is bringing a High Court challenge against an element of the government's 'hostile environment' policy which covers the right to rent private accommodation.

Posted on 17 December 2018

The judicial review case brought by the Joint Council for the Welfare of Immigrants (JCWI) against the Secretary of State for the Home Department will be heard in the High Court in London between 18th and 20th December 2018.

JCWI are supported by interventions from the Residential Landlords Association (RLA), the Equality and Human Rights Commission, and Liberty.

This case concerns the adverse impact the hostile environment is having on BAME British citizens and foreign nationals who have the right to live in this country.

The Immigration Act 2014 places responsibility on private landlords to ensure that they do not rent accommodation to people from abroad who are disqualified for doing so, such as those without leave to remain. Landlords who do allow this to happen are liable to be fined and/or imprisoned unless they can demonstrate they undertook prescribed checks and, where required, informed the Home Office of the disqualified person’s occupation.

Furthermore, if made aware that an occupier does not have the right to rent, the landlord is required to take steps to repossess the property.

JCWI argue in their legal case that the legislative scheme causes discrimination on grounds of race and is therefore incompatible with Article 14 in conjunction with Article 8 of the European Convention on Human Rights (ECHR). They argue that, by placing private landlords with all responsibility and serious sanctions for renting to disqualified people, the policy causes landlords to commit race discrimination against potential tenants who are perfectly entitled to rent.

The scheme currently only applies in England and the legal case also questions whether it would be lawful for the government to roll it out across the UK without first evaluating whether it is causing discrimination.

JCWI and other NGOs have gathered evidence of the detrimental effect of the policy and presented these to the government, but it continues to refuse to carry out its own evaluations. 

JCWI carried out two mystery shopper exercises and in February 2017 published its research report on the scheme ‘Passport Please: The impact of the Right to Rent checks on migrants and ethnic minorities in England’.

The report’s main conclusions were that the scheme was causing foreign nationals and BAME people of all nationalities to experience race discrimination. Their research demonstrated that non-British tenants who have a permanent right to rent nevertheless face a clear disadvantage in comparison with their British counterparts, and landlords are unwilling to undertake online checks for those who cannot otherwise provide documentary proof of their right to rent.

The report also found that the most vulnerable individuals, such as asylum seekers, stateless persons, and victims of modern-day slavery, who require landlords to do an online check with the Home Office to confirm they have been granted permission to rent, face very significant barriers.

Chai Patel, Legal Policy Director for Joint Council for the Welfare of Immigrants, said: 

“Sajid Javid promised he would learn the lessons of the Windrush scandal, which left many thousands of legal immigrants to the UK destitute, detained, and even deported. But he is ignoring our evidence that requiring landlords to check immigration status does not work and causes exactly the kinds of problems that the Windrush generation faced.

“Not only is he ignoring our evidence, he is fighting us in court to stop the Home Office from being required to do its own evaluation into whether the scheme is harming ethnic minorities and foreign nationals with every right to rent property. He is ignoring the Independent Chief Inspector of Borders and Immigration’s recommendations to do the same. This is extraordinarily intrusive red tape that conscripts landlords as border officials on pain of imprisonment, and Sajid Javid won’t even check that it’s working as planned. He has clearly learnt nothing from Theresa May’s mistakes.”

Rowan Smith, solicitor at Leigh Day, said:

“The evidence is clear: the government’s policy is encouraging a significant number of landlords to refuse to rent to those without a British passport. As a result, non-British people living in the UK, and many from the BAME community, are treated less favourably due to their nationality. This represents a key plank of the hostile environment created by government, which has already had a hugely damaging impact on UK society through the Windrush Scandal. Having presented the Court with such compelling evidence that the government’s right to rent scheme is incentivising landlords to discriminate on the grounds of race, we are hopeful that the judgment will find that the right to rent scheme is incompatible with the European Convention on Human Rights.”