Government successfully appeals in ‘Right to Rent’ case

22 April 2020 by Samuel March

R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, judgment here

On 21^st April 2020, the Court of Appeal allowed the Home Office’s appeal in the ‘right to rent’ case. The decision below was covered on this blog here.

Notably, the Court of Appeal agreed with the High Court’s view that the scheme does result in landlords discriminating against tenants without British passports on the basis of their actual or perceived nationality. However, the Court held that this discrimination was justified.

Background

This case involved a challenge to an element of the government’s controversial ‘right to rent’ scheme, as laid out in sections 20-37 of the Immigration Act 2014. The scheme forms part of the Government’s ‘compliant environment’ (formerly ‘hostile environment’) policy.

The scheme required private landlords to check the immigration status of tenants and potential tenants. It made knowingly leasing a property to a disqualified person a criminal offence, punishable by up to 5 years’ imprisonment, an unlimited fine, or both.

In 2018, The Joint Council for the Welfare of Immigrants (JCWI) sought judicial review of the policy. It was concerned that fear of sanctions would indirectly cause landlords to discriminate against lawful prospective renters without British passports, particularly if they did not have traditionally British-sounding names or did not appear ethnically British. JCWI was supported by interventions from Liberty, the Equality and Human Rights Commission and the Residential Landlords Association (now part of the National Residential Landlords Association).

The High Court Judgment

At first instance, Martin Spencer J found for the charity, ruling that the police had a “disproportionately discriminatory effect”, yet “little to no effect” [123] on actually controlling immigration.

He made two declarations: first that the scheme was incompatible with Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) (“the declaration of incompatibility”), secondly, that to roll out the scheme in devolved territories, without further evaluation of its efficacy and discriminatory impact, would be irrational and would constitute a breach of s. 149 Equality Act 2010 (EqA) (“the declaration of irrationality”).

Issues on Appeal 

The Secretary of State appealed on six grounds, arguing that

1. The case fell outside the ambit of Articles 8 and 14 of the ECHR;
2. The legislation did not result in discrimination;
3. The government was not responsible for discrimination by landlords;
4. Any discriminatory effects were justified as a proportionate means of achieving a legitimate aim;
5. The judge erred in making a declaration of incompatibility in respect of the whole scheme; and
6. The judge erred in making a declaration of irrationality.

Ground 1: Ambit

Giving the lead judgment, Hickinbottom LJ (with whom Henderson LJ agreed) considered at [96] that the facts of this case, which concerned people seeking “a” home generally (as opposed to, for instance being evicted from their actual home) did not fall within the scope of Article 8.

The “far more challenging” [97] question was whether the facts fell within the wider “ambit” of Article 8, for the purposes of a claim made in conjunction with Article 14.

Davis LJ, allowing the appeal in a separate judgment at [169]-[175], considered that it did not.  Although Hickinbottom LJ at [110] saw “considerable force” in Davis LJ’s reasoning, he also noted “the generous width” [104] of the concept of “ambit” applied by the ECtHR. In light of this, at [110] he considered that the facts of the case “might well fall within the ambit of article 8”.

He proceeded on the assumption that it did, because it was ultimately unnecessary to express a conclusion on the issue in light of the clear findings on proportionality discussed below. As in R (Ward) v Hillingdon London Borough Council [2019] EWCA Civ 692 the ambit issue was “best left to a case in which it matters” [109]. 

Grounds 2 and 3: Factual Discrimination and Responsibility

Hickinbottom LJ dealt with these two grounds together. Albeit with considerably less ease and confidence than Martin Spencer J, Hickinbottom LJ ultimately agreed (at [66]) that on the evidence

those who had a right to rent, but did not have British passports (or, particularly, had neither such passports nor ethnically-British attributes), were the subject of discrimination on the basis of their actual or perceived nationality; and that that discrimination was caused by the Scheme in the sense that, but for the Scheme, that level of such discrimination would not have occurred.

Hickinbottom LJ’s findings were markedly less emphatic than Martin Spencer J’s, and he did not agree with the latter’s analysis, intermediate assessments and other findings of fact. He appeared to take lower view of the nature and level of discrimination.

Ground 4:  Justification     

The question of proportionality, specifically justification, was the matter “at the heart of the appeal” [114]. On this issue, the Court’s finding that the appellants had an “objective and reasonable justification” proved fatal to the charity.

The relevant test is set out in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39: did the severity of the scheme’s effects outweigh the importance of supporting a coherent immigration system?

Here JCWI faced a high hurdle. This was not a case of a specific individual claiming that he or she had been discriminated against as a result of the scheme’s operation. On the contrary: they were mounting a direct challenge against the validity of statutory provisions. Following Christian Institute v Lord Advocate [2016] UKSC 51 and R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68, the Court held at [118] that in such cases, the

legislation will not be unjustified (and, so, not unlawful) unless it is incapable of being operated in a proportionate way in all or nearly all cases.

The Court held that a minority of discriminating landlords, no matter how sizeable, could not satisfy this test. JCWI’s most favourable evidence (see [77]) suggested a “shocking” 42% of landlords said that the right to rent requirements had made them less likely to consider someone who does not have a British passport, and 27% said they were reluctant to engage with those with foreign accents or names.

The Court did not wholly accept this data in light of “statistical weaknesses”, but even if they had, it considered that it still suggested that the scheme was operating in a proportionate way in most individual cases, and ought to be capable of being operated proportionately in all cases (see [119]).

An alternative argument (at [120]-[151]) involved an interesting consideration of whether the Bank Mellat test involved applying a “manifestly without reasonable foundation” test or a “simple balancing” test. At first instance, Martin Spencer J had applied the latter.

Although not determinative in light of the above, Hickinbottom LJ indicated (at [134]) that the former test would, in his view, apply in this case. However, he did not consider this to be a “simply binary question” [136]. At [140]) he held that

the criterion simply recognises that, where there is a substantial degree of economic and/or social policy involved in a measure, the degree of deference to the assessment of the democratically-elected-or-accountable body that enacts the measure must be accorded great weight because of the wide margin of judgment they have in such matters. The greater the element of economic and/or social policy involved, the greater the margin of judgment and the greater the deference that should be afforded.

On the facts of this case, he considered that the scheme was justified, regardless of which test was applied. In so concluding he relied on a wide range of factors, including

1. The consistency of scheme with EU Council Directive 2002/90/EC [143];
2. The “more than insufficient” effectiveness of the scheme (Martin Spencer J was “wrong” to find that the scheme had “little or no effect) [146];
3. The nature and level of discrimination [150];
4. That unlawful discrimination was not the intention or the direct result of the scheme [148];
5. That any discrimination was attributable to a minority of landlords who were acting unlawfully [149]; and
6. That the EqA provided affected persons with a remedy against unlawful discrimination by landlords that Parliament must have considered appropriate [149].

Ground 4 & 5:  The Declarations of Incompatibility and Irrationality    

Any remedies fell with the claim. Martin Spencer J had therefore been wrong to make the declarations of incompatibility and irrationality.

Comment

This case did not turn out to be “the end for the hostile environment” that some predicted after the High Court ruling.

Instead it vindicated the predictions of critics, who from the moment that ruling was handed down had foreseen “a very strong case” for appeal. Richard Ekins had called the High Court judgment “incredible”, “sketchy” and “implausible,” arguing that it went “beyond settled law.” Ekins framed his criticism of the case in the context of wider constitutional tensions and human rights laws that he considered invite or require judges to stray into the political fray.

With this in mind it is hard not to consider the case in light of recent developments in these constitutional tensions. Since the original trial, the UK has a new Attorney General who has criticised “unelected, unaccountable” judges, there are signs of an impending “update” to the Human Rights Act and possible withdrawal from the ECHR, and the shadow of a politicised judicial appointments system looms large. Those who have predicted increasingly “cowed judges” may see the shift from the High Court judgment to the approach of the Court of Appeal as a sign of things to come.

We shall have to see. Following the judgment, JCWI immediately stated their intention to appeal. They note both courts’ agreement that the policy does cause racial discrimination and expressed the view that

No amount of discrimination is acceptable … We will continue to fight this policy and our next step will be to appeal at the Supreme Court.

Four years on from the introduction of the scheme, the saga continues.

Samuel March is a paralegal and student on the Bar Professional Training Course