The right to rent scheme, introduced across England in 2016 by the then Home Secretary Theresa May, was found unlawful in its entirety by the High Court on Friday.
The judgment followed a challenge against the scheme led by the Joint Council for the Welfare of Immigrants (JCWI) and prevents government plans to extend it across the rest of the UK. The scheme requires private landlords to check the immigration status of prospective tenants by seeing documents or carrying out online checks. Failing to do so is a criminal offence, carrying a maximum penalty of five years’ imprisonment or a fine.
The Residential Landlord’s Association (RLA), who supported the challenge against the scheme, has described it as turning landlords into ‘untrained and unwilling border police’.
It is a ‘key pillar’ of the government’s hostile environment policy aimed at reducing the number of illegal immigrants in the UK. However, a report published last year by the Independent Chief Inspector of Borders and Immigration concluded that the scheme has ‘yet to demonstrate its worth as a tool to encourage immigration compliance’. Mr Justice Spencer found that the scheme had ‘little or no effect’ on controlling immigration and that the Home Office had ‘not come close’ to justifying it.
The court heard evidence of the impact of the scheme from various sources including the Equality and Human Rights Commission, JCWI, RLA, Shelter and Crisis.
‘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,’ Mr Justice Spencer said. ‘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’.
‘Checking someone’s immigration status is a complex job, and the cost of getting it wrong is high’, said JCWI. ‘So, it’s not surprising that landlords are less inclined to rent to anybody, documented or not, if they’ve got a foreign-sounding name or if they aren’t a British citizen’.
‘Every day, our frontline staff hear of the overwhelming difficulties faced by homeless people trying to find a tenancy in the already saturated rental market’, said Jon Sparkes, chief executive of Crisis. ‘This is made even harder if someone has to prove their immigration status, especially as official documents like passports can often be lost by sleeping rough, moving from hostel to hostel, or fleeing domestic abuse – and replacements can be prohibitively expensive.’
Research by the JCWI has found that the most vulnerable individuals, such as asylum seekers, stateless persons, and victims of modern slavery, who require landlords to do online checks with the Home Office to confirm their right to rent, face very significant barriers when it comes to trying to rent privately.
Lara ten Caten, Liberty’s solicitor, called the ruling ‘another nail in the coffin for the government’s misguided, discriminatory and unworkable hostile environment policy’.
Mr Justice Spencer said that the government’s safeguards to avoid discrimination have proved ‘ineffective,’ and the MPs who voted for the scheme would be ‘aghast’ to see its consequences.
‘Now that the High Court has confirmed that Theresa May’s policy actively causes discrimination, parliament must act immediately to scrap it,’ said Chai Patel, legal policy director of JCWI. ‘But we all know that this sort of discrimination, caused by making private individuals into border guards, affects almost every aspect of public life – it has crept into our banks, hospitals and schools. Today’s judgment only reveals the tip of the iceberg and demonstrates why the hostile environment must be dismantled.’
The Home Office has been granted permission to appeal the judgment. In the meantime, it said it is ‘giving careful consideration to the judge’s comments’.
