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The Court of Appeal (Davis, Henderson and Hickinbottom LJJ) has today handed down judgment in this case. It has allowed the Secretary of State’s appeal against the High Court’s conclusion that the “right to rent” scheme, set out in sections 20-37 of the Immigration Act 2014, is incompatible with Article 14 ECHR (read with Article 8).

The Scheme prohibits private landlords in England from renting property under residential tenancy agreements to people who are not British, EEA or Swiss citizens, and who either (i) do not have leave to enter or remain in the UK, or (ii) whose leave is subject to a condition that prevents them from occupying premises. JCWI’s claim was that the entire Scheme was in breach of Article 14 of the European Convention on Human Rights (“ECHR”) read with Article 8 of the ECHR, and so unlawful, because it was causing landlords to discriminate against potential tenants who were not disqualified from renting under the Scheme (i.e. those with a perfect right to rent), on the grounds of their nationality and/or their race. Specifically, it was contended that landlords would seek to avoid any risk of a penalty under the Scheme by only letting to persons with British passports, or persons with apparently ethnically British traits (such as a “British-sounding” name), and would thereby discriminate against non-British persons or ethnic minorities who were entitled to rent; and that this discrimination should be seen as having been caused by the Scheme itself. JCWI also sought a declaration that it would be unlawful for the Secretary of State to make an order extending the Scheme to Scotland, Wales or Northern Ireland without conducting a further evaluation of its efficacy or allegedly discriminatory impact.

On 1 March 2019, the High Court (Martin Spencer J) handed down judgment allowing the claim for judicial review, granting an order under section 4 of the Human Rights Act 1998 that the Scheme was incompatible with ECHR rights, along with a further order that it could not be extended beyond England without a further evaluation. The Secretary of State appealed against both of these orders. JCWI cross-appealed against the Judge’s finding that the effect of the Scheme on prospective tenants discriminated against as a result of the scheme did not interfere with their rights under Article 8 ECHR.

The Court of Appeal allowed the Secretary of State’s appeal, and set aside the orders that he made. It dismissed JCWI’s cross-appeal. Hickinbottom LJ gave the lead judgment, with which Henderson LJ agreed. In summary:

(1) There were numerous shortcomings in the Judge’s analysis of the evidence in reaching his conclusion that landlords were discriminating on the grounds of nationality and/or race as a result of the Scheme. The issue was not straightforward. However, overall, the Court upheld the Judge’s conclusion that, but for the Scheme, there would have been less discrimination. However, the evidence showed that discrimination was practised only by a minority of landlords, with the best evidence as to the size of the issue indicating that it was around 5 or 6% who reported doing so in the 30 months since the Scheme came into force. As for the Secretary of State’s argument that any discrimination by landlords was the fault of landlords and should not be attributed to the Scheme itself, the Court said that it preferred to consider this in relation to justification rather than causation.

(2) As to the Judge’s conclusion that the landlords’ discrimination fell within the ambit of Article 8 of the ECHR for the purposes of an analysis under Article 14 (such that Article 14 would apply in this case), Hickinbottom LJ found it unnecessary to reach a conclusion, but was prepared to assume it did. He agreed with the Judge’s conclusion that there was no interference with the Article 8 rights of those discriminated against. Some people might face delays and inconvenience in finding a tenancy, but the evidence did not show that anyone would be unable to do so. Accordingly JCWI’s cross-appeal fell to be dismissed.

(3) The central issue was whether the discrimination was justified. The Court held first that, since the challenge brought was to the operation of the Scheme as a whole (rather than to discrimination in a specific case), it needed to be shown that the Scheme was not capable of operating lawfully, and operated unlawfully in all or almost all cases. This was not the case. On the contrary, the Scheme was entirely capable of lawful operation, in all cases. Second, it held that the Scheme was a proportionate means of meeting the legitimate aim of discouraging illegal immigration, after analysing the nature and level of the discrimination by landlords, and the countervailing benefits to the immigration system that such a scheme entailed - taking account of the respect to be accorded to Parliament’s judgment in this area, and the fact that Parliament had been aware of the risk of discrimination when it enacted the Scheme.

(4) Given those conclusions, the Judge’s declaration of incompatibility under the Human Rights Act 1998 could not stand. His further declaration, as to the procedure to follow in extending the Scheme was also set aside as premature in circumstances where no decision had yet been made to do so.

Davis LJ gave a concurring judgment. He agreed that any discrimination that would not have occurred but for the Scheme (the evidence about which was inconclusive) was clearly justified and so not unlawful. He also considered that the facts of the claim fell outside the ambit of Article 8. Further, he stressed his concern at the underlying logic of the claim, which sought to attribute discrimination by private landlords to the Scheme itself, notwithstanding that the Scheme and the wider law set out to prevent discrimination as well as to encourage compliance with immigration laws. Landlords are not simply profit driven automata, and it was not ‘logical’ or ‘rational’ for them to discriminate on grounds of race or nationality in the light of the Scheme, as the Judge had found. Like all citizens, they must comply with, and be taken to comply with, the law. Responsibility for any discrimination lay with landlords, and not the legislation itself. The fact that landlords might pray in aid their own discrimination in order to bring down a Scheme to which they were opposed potentially represented a challenge to the rule of law, which the Courts should not countenance.

Sir James Eadie QC, David Pievsky QC and David Lowe acted for the Secretary of State.

The full judgment can be found here.

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