Today, the High Court has ruled that the ‘Right to Rent’ checks, a key policy of Theresa May’s so-called “hostile”, now rebranded as “compliant environment”, cause landlords to discriminate against prospective tenants on racial and nationality grounds.  

Mr Justice Martin Spencer has handed down a damning verdict excoriating the government, saying that the scheme not merely risks causing illegal discrimination, but is certain to do so, as would any scheme of this kind. Furthermore, the judge found that the government has “not come close” to justifying the discriminatory impact of the scheme, especially since it had failed to collect any data demonstrating that it actually works in its stated aim: making undocumented migrants leave the country. 

The ruling has significant implications for the development of human rights and discrimination law. Having found the scheme caused landlords to discriminate, Spencer J had to consider whether this actually came within the ambit of Article 8 for the purposes of engaging Article 14 of the European Convention on Human Rights. Accepting that he was developing the law on this, he said

Although Article 8 does not give anyone the right to a home, in my judgment it gives everyone the 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. 

He goes on to say 

If the Government’s arguments were correct, a law could be passed which enacted a rule that landlords may only rent to white, British nationals and this would not engage Article 8 and therefore not offend against the Convention because Article 8 does not give a right to a home, and this would not be a positive modality case. That cannot be right.

Spencer J also gave short shrift to the argument that landlords were responsible for the discrimination, saying that “the Government cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the Scheme”.

This is a significant victory for us at JCWI, representing as it does a major blow to the logic of the whole hostile environment. We hope that it will have repercussions for its other pillars: NHS charging, bank checks and employment checks. Under the circumstances it is unsurprising that the government is seeking to appeal the ruling, seemingly unconcerned about the optics of spending further public money on fighting for the right to cause racial discrimination. It seems that in the pursuit of looking “tough” on immigration, a return to the outright racism that existed in the housing market in the ‘50s is alright by Sajid Javid.

The Home Office has said that they are “disappointed”. @sajidjavid @ukhomeoffice you must get rid of things that do not spark joy! pic.twitter.com/I1P3Oso3hI

— JCWI (@JCWI_UK) March 1, 2019

The government will seek to portray ‘Right to Rent’ checks as a necessary tool to combat illegal immigration – rest assured that you’ll hear that term repeated ad nauseam in their responses. But this judgment clearly supports our view that the aim of making life so unbearable for people in the country without leave cannot be enforced without creating a hostile environment for all of us — especially those who look or sound “foreign”. The government is so blithely undisturbed by the impact of its policies on our ethnic minority communities and migrants that it defends the hostile environment in the face of all reason and all evidence. 

The correct thing for the government to do now, rather than fighting an appeal, would be to scrap the scheme along with its whole package of hostile environment policies. It is a matter of weeks until Brexit, when the best part of four million more people will all of sudden be at risk of being subject to these policies. Until the government can show conclusive evidence that its immigration control policies work, and don’t produce unfair discrimination, it should not be expanding their reach to a huge number more people. 

 Most damningly, the government’s refusal to even monitor the scheme’s impact, in order to be able to demonstrate that it works, displays a monumental level of arrogance. They misjudged the country’s compassion when it came to the Windrush scandal; we are sure they have misjudged it again. 

Read the full High Court judgment: R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin).