The government's 'hostile environment' policy took a hit in a High Court judgement on Friday. Spencer J declared the "right to rent" scheme, laid out in sections 20-37 of the Immigration Act 2014, incompatible with the European Convention on Human Rights (ECHR). He also declared that a decision by the Secretary of State for the Home Department 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.
Background
The case challenged an element of the government's 'hostile environment' immigration policy, which was recently rebranded the "compliant environment" following criticism.
The sections of the Act relevant to this case contained the provisions of the controversial "right to rent" scheme. This required private landlords to check the immigration status of tenants and potential tenants. Knowingly leasing a property to a disqualified person became a criminal offence, punishable by up to 5 years' imprisonment, an unlimited fine, or both.
This claim was brought by the Joint Council for the Welfare of Immigrants (JCWI) a small charity seeking to ensure that "immigration law and policy are based on sound evidence, promote the rule of law and are underpinned by respect for human rights and human dignity." They were supported by interventions from Liberty, the Equality and Human Rights Commission and the Residential Landlords Association (RLA).
JCWI, by way of judicial review, sought:
1. A declaration that the scheme was incompatible with Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) ECHR; and
2. either (i) an order quashing the defendant's decision to extend the Scheme to the rest of the UK, or (ii) a declaration that such a decision would be irrational and in breach of s.149 Equality Act 2010.
Ground 1: Declaration of Incompatibility
In relation to the declaration of incompatibility, the claimant was required to show that:
1. the case came within the ambit of Articles 8 and 14 of the ECHR;
2. the legislation was, in fact, discriminatory;
3. the government was responsible for discrimination by landlords;
4. the legislation a disproportionate means of controlling immigration; and
5. the legislation was incapable of being applied in a non-discriminatory way.
• Ambit
Spencer J found the question of ambit to "be the most difficult issue for decision" [62]. The defendant distinguished between one's actual home (protected by Article 8) and the right to "a" home (which is not protected). All parties agreed on this issue. Nevertheless, Spencer J found that the Article does protect one's right to
seek to obtain a home for themselves and their family even if they are eventually unsuccessful, and the playing field should be even for everyone in the market for housing, irrespective of their race and nationality. [68]
• Factual discrimination
Spencer J had little difficulty finding that the scheme was, in fact, indirectly discriminatory. He noted the consistency of evidence from JCWI, Shelter, Crisis, the RLA and a report by the Independent Chief Inspector of Borders and Immigration. 42% of landlords reported that they were now less likely to consider letting to someone without a British passport; and 49% of landlords reported that they were now less likely to consider letting to someone who had permission to stay in the UK for a limited time period. He was willing to take two small steps from the evidence to the conclusion
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. [93]
• Responsibility
The defendant argued that, regardless of the above, the government could not be responsible for voluntary intervention of third party landlords acting independently and inconsistently with the requirements of the legislation, and the codes and guidance issued under it. This held little sway with Spencer J, given his finding that the legislation
does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so. [105]
• Proportionality
The next question was whether the scheme could be justified as striking a fair balance between the benefits of controlling immigration and the disbenefits of restricting the relevant convention rights. On such matters the State is entitled to a wide margin of appreciation (SAS v France [2015] 60 EHRR 11).
Immigration is a volatile political issue, and the Council of Europe has reached no consensus on what constitutes an acceptable means of controlling it. As such, the defendant relied on the European Court of Human Rights' reluctance to interfere.
This, however, did not dissuade Spencer J's emphatic finding that "the Government has not justified this measure nor, indeed, come close to doing so" [124]. It was considered particularly relevant that, in proposing the legislation, discrimination was not acknowledged as a "cost" necessary in order to achieve the aims. In fact, measures were put in place to avoid discrimination.
Given that such measures had failed, Spencer J suggested the Government might welcome a declaration of incompatibility as an opportunity to
re-think its strategy and see how the same aims can be achieved without the unwanted and unwelcome effect of discrimination. [122]
• Incompatibility
Finally, the courts' power to make a declaration of incompatibility pursuant to Section 4 of the Human Rights Act 1998 is not generally exercised unless legislation is incapable of being applied compatibly with Convention rights (R (MM (Lebanon)) v Secretary of State for the Home Department [2015] 1 WLR 1073). This was no barrier to Spencer J, who ruled that
any scheme of this kind will inexorably lead landlords down the path of discrimination and operate in a way which is incompatible with Article 14 ECHR. [127]
Therefore, a declaration of incompatibility was granted.
Ground 2: Declaration of Irrationality
In relation to whether to grant a quashing order or issue a declaration of irrationality in relation to any decision by the government to extend the Scheme to the rest of the UK, Spencer J's deliberations were markedly more brief.
A quashing order was deemed "inapplicable and inappropriate" [129] in the absence of an actual decision by the defendant to extend the Scheme to the devolved territories. However, Spencer J did consider that "no reasonable Home Secretary could decide to extend the Scheme further without first securing evidence to dispel the evidence garnered by the Claimant and the interested parties" [131].
Considering that the Government had expressed a "clear intention" to extend the Scheme, it was considered appropriate for the court to make a declaration that so-doing would be "irrational and a breach of Section 149 of the Equality Act 2010". [133]
Reception and Possible Appeal
The ruling has sparked controversy since its publication last Friday. Labour politicians Sadiq Khan and David Lammy celebrated what they considered to be a "damning indictment" by the court of the scheme, and journalists have gone as far as announcing "the end for the hostile environment."
The judgment is an important victory, understandably welcomed by human rights groups fighting "hostile environment" policies. However, celebrations may be premature; a Home Office spokesperson has expressed the government's disappointment, and nodded to the right to appeal.
From the opening, Spencer J's judgement is emphatic, bordering on enthusiastic, and suggests sympathy for the claimant's cause and hostility to government policy. This support was critical to the claimants, whose success depended on favourable findings on each and every issue in ground 1. Any one of these affirmations, some of which required considerable flexibility from Spencer J, could still be reversed on appeal.
Oxford Professor Richard Ekins, writing for The Spectator, called the "incredible" judgement "sketchy and implausible," labelling it a "travesty" that "goes beyond settled law." He alludes to the constitutional problems posed by a Human Rights framework that invites or requires the judiciary to stray into the political fray. According to Ekins, there is "a very strong case for this ruling to be overturned on appeal" and appellate courts would be "wise to reverse."