This week, the courts have once again found that the government’s Right to Rent checks – which require landlords to verify the immigration status of their tenants – cause discrimination on the grounds of race and nationality where it would not otherwise occur. In line with the conclusion of the High Court in March last year, the Court of Appeal found that ethnic minorities and migrants experience more difficulty than white applicants who are able to show a British passport, and take longer to find housing in the private rented sector. 

Discrimination not a matter for the courts, judges say

The court accepted JCWI’s evidence that landlords faced with choosing between prospective tenants who they can easily identify as British – through ethnic markers or the possession of a British passport – and others, they will discriminate in favour of white Brits for administrative convenience and to avoid the risk of being fined under the scheme. It concluded that because just under half of landlords may behave in this manner, it could take on average twice as long for a migrant or person from a minority ethnic community to get a tenancy than their white British counterparts.   

Disappointingly, the judges did not find that this constitutes a breach of human rights legislation or that the discrimination it causes makes the scheme as a whole unlawful. In contrast to the judge in the High Court, who was convinced that Members of Parliament who had voted in favour of introducing the scheme “would be aghast to learn of its discriminatory effects”, the judges in this case stated that parliamentarians were aware of the risk that this may occur:

it certainly cannot be assumed that they [MPs] considered the risk would be managed so that discrimination… would not increase as a result of the introduction of the scheme.

It is therefore left to Parliament and to government to judge whether the racist outcomes produced by the scheme are within the boundaries of what they had expected when voting it through. 

Is Parliament really going to act?

This conclusion is stark when read alongside the findings in the recently published Windrush Lessons Learned Review, which criticises the Home Office for failing to heed warnings about the likely discriminatory impact of the Right to Rent scheme.

As with other areas where experts have argued that immigration enforcement measures risk a divisive impact in our communities, officials are accused of failing to give due consideration to equalities legislation and responding with dismissal and defensiveness. The review notes how the government at the time ignored not only the warnings of civil society – including JCWI – but also a report written for its own hostile environment working group by Grant Shapps, which strongly advised against the introduction of the scheme, citing the same concerns about its impact on minorities and vulnerable groups.

In this sense, it is possible to understand why the judges were unconvinced that the MPs who voted this measure through would be so shocked to learn that landlords are indeed discriminating because of it. It is unfortunate, however, that they did not conclude that it is therefore for the courts, and not those same parliamentarians, to suspend the scheme on the basis of its intolerable impact.    

This government has made plain that it considers the racial discrimination produced by its Right to Rent checks to be justified by the need to maintain a hostile environment for undocumented migrants. Whether or not it has in fact achieved this aim has not been proven – another reason the High Court found that the scheme was not justifiable. But the Court of Appeal ruled that “whether the scheme has been effective is difficult, if not impossible, to verify empirically, and is essentially a matter of judgment for Parliament.” 

On to the Supreme Court

The severe impact of racial prejudice and discrimination is being highlighted in the present crisis. It would appear that our black and minority ethnic population is disproportionately represented in deaths from COVID-19. Questions are being raised about how structural inequalities that permeate our society, including in housing, are having an impact on health outcomes.

Lack of access to safe, high quality housing and its impact on health outcomes may be playing a role in this current worrying trend for ethnic minorities, who are more likely to be renting undesirable housing – in part as a result of this government policy.

The correct assessment as to how much racial discrimination is acceptable or justified in the housing market, especially at a time of crisis, is none. As the government does not apparently agree, we will be pursuing a further appeal to the Supreme Court, in the hope that where MPs’ judgment fails, we can still get this scheme scrapped once and for all.