A Note on the High Court’s “Right to Rent” Decision

The proposition that racism is injurious to both victims and perpetrators rests at the heart of the recent decision of the UK High Court in the case of R (On the Application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) - the so-called “right to rent” case.

Concluding that sections 20-37 of the Immigration Act 2014 were so clearly incompatible with Articles 14 and 8 of the European Convention on Human Rights (ECHR) that it would be “irrational” (and therefore unlawful in public law terms) for the UK government to extend the provisions to Scotland, Wales and Northern Ireland “...without further evaluation of its efficacy and discriminatory impact…” (para. 134), the High Court judgement makes clear that both black and minority ethnic (BME) prospective tenants and private landlords (some of whom will also be from BME communities) have suffered under a racially discriminatory, and otherwise flawed, government strategy of immigration controls.

The court found that prospective tenants who, as a result of the Immigration Act’s discriminatory provisions, either failed to obtain rental accommodation, or did so only after a protracted search (para. 96) have been treated in a way which contravenes Article 8 of the ECHR. Whilst not creating a right to a home, Article 8 “...gives everyone the right to seek to obtain a home for themselves and their family even if they are eventually unsuccessful...” (para. 68). However, it is the court’s findings as to the impact of the legislation on landlords that highlights the pervasive nature of racism. The court resolutely rejected the argument that the legislation merely facilitated the racially discriminatory tendencies of certain “rogue” landlords. In its judgement, the legislation “...does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not” (para. 105).

The “right to rent” case is not the only instance of private individuals being drawn unwillingly into the service of immigration control measures which (as was established in relation to sections 20-37 of the Immigration Act 2014) the government takes little or no trouble to monitor for their efficacy (para. 123). It would be too much to hope that this government will be moved by the knowledge that its outsourcing strategy has caused harm to the individuals subject to the controls as well as to the individuals required to enforce them. However, the High Court has sent a clear message to the effect that a serving government which knowingly or recklessly causes racial discrimination to occur in the housing market (para. 105) will be held to account.