Joint Council for the Welfare of Immigrants, R (On the Application Of) v Secretary of State for the Home Department(2019) EWHC 452 (Admin) – Official transcript is available here.
This was a claim for judicial review brought by the Joint Council for the Welfare of Immigrants (“JCWI”) of the Right to Rent Scheme which was enacted under the Immigration Act 2014 and 2016. The claim was founded upon the allegation that the Right to Rent scheme caused landlords to commit nationality and or race discrimination for the purpose of complying with the Scheme.
To discriminate a person based on nationality or race is a contravention of Article 8 and Article 14 of the Convention on Human Rights. The scheme, as we have written about previously in greater detail, requires landlords to check the immigration status of tenants and prospective tenants and where there is a breach of this requirement a landlord can face unlimited fine or even imprisonment.
Mr Justice Spencer said the much-criticised scheme was unlawful because it caused landlords to discriminate against British citizens from minority ethnic backgrounds and against foreign nationals who have a legal right to rent.
Mr Justice Spencer further stated:
“MPs who voted for this legislation would be aghast to learn of its discriminatory effect as shown by the evidence,” he added. “In my judgment, the evidence, when taken together, strongly showed not only that landlords are discriminating against potential tenants on grounds of nationality and ethnicity but also that they are doing so because of the scheme…..It is my view that the scheme introduced by the government does not merely provide the occasion or opportunity for private landlords to discriminate, but causes them to do so where otherwise they would not.” – Emphasis added.
Joanna Cherry QC, the SNP spokesperson for justice and home affairs said:
“Today’s judgment in the high court is yet another damming indictment of the failure of Theresa May’s cruel polices as home secretary. Sajid Javid must now undertake a full review and dismantle the unworkable hostile environment policy.”
Mr Justice Spencer made a declaration of incompatibility which means it is now for Parliament to repeal or amend the relevant sections of the Immigration Act 2014.
Courts must always interpret, so far as possible, law in a manner compatible with Human Rights, in which case a declaration of incompatibility is a last resort for a Court. We have had some enquries as to whether, following this Judgement, landlords are still required to comply with the Right to Rent Scheme.
Notwithstanding, the declaration of incompatibility, landlords must continue to comply with the Right to Rent scheme until Parliament take appropriate action to ensure the scheme, should it continue, is compatible. A declaration of incompatibility does not strike down legislation as this is not a power the courts have been delegated.
Nevertheless, this is a positive outcome for landlords and individuals generally who may have been adversely affected by the scheme.