Home Secretary wins appeal on right to reside ruling
The Home Secretary has won an appeal in the English courts against a ruling that a key plank of the Government's "hostile environment" policy to combat illegal immigration was discriminatory.
Three appeal judges have overturned a decision by Mr Justice Spencer last year (click here for report) that the right to rent scheme, which requires private landlords in England to check the immigration status of tenants and potential tenants, with the risk of criminal penalties for renting to undocumented migrants, was unlawful as it caused unacceptable racial discrimination.
Lords Justices Davis, Henderson and Hickinbottom held that the claimants, the Joint Council for the Welfare of Immigrants, had not established their case that the scheme itself caused and was responsible for discrimination by landlords.
Giving the leading judgment, Lord Justice Hickinbottom said he was satisfied on the evidence that, as a result of the scheme, some landlords did discriminate against potential tenants who did not have British passports, particularly those who did not have "ethnically British attributes such as name". However the evidence did not suggest that such people were unable to find accommodation at all.
Although, on the view of the evidence most favourable to the claimants, it was "shocking" that nearly half of landlords might be discriminating, the figures meant that "a potential tenant in the category most discriminated against... will on average take no longer than twice the time to obtain a tenancy as it would take someone with a British passport. Whilst, of course, some potential tenants will be unfortunate and take longer than the average time, the evidence cannot support the contention that there are potential tenants who will never obtain private accommodation".
He agreed with the judge's conclusion that the facts of this case did not fall within the scope of article 8(1) of the European Convention on Human Rights (right to private and family life), "although, if I am wrong in that conclusion... I consider that any interference with those rights would not be disproportionate such as to lead to the conclusion that the scheme is incompatible with article 8".
The judge concluded: "In my view, the judge was wrong to dismiss the public benefits derived from the scheme; and to conclude, as he did, that the scheme has had 'little or no effect' so far as its aim of curbing illegal immigration is concerned."
In a concurring judgment Lord Justice Davis stated: "My fundamental objection to the claim is, put shortly, this. Essential to these proceedings is the proposition that the scheme itself has caused and is responsible for the asserted discrimination. I simply cannot and will not accept that. The whole essence of the scheme – by the primary legislation, by the code, by the available guidance, by the applicability of the discrimination provisions and remedies available under the Equality Act 2010 and so on – is precisely to contrary effect. Thus so far from encouraging or incentivising discrimination, as is asserted, it seeks to do the opposite."