On the 1st of February 2016 the Government introduced the “Right to Rent” scheme. Given its function, it was arguably misnamed as its purpose was not to provide Tenants with “rights” to rent but to limit it. The scheme requires landlords to check prospective tenants leave to remain in the UK. Failure to do so could lead to prosecution, fine or even imprisonment. From its inception the scheme was criticised by many as a way of passing the responsibility of immigration checks to landlords with the view to promoting a “hostile environment” against illegal immigrants. Critics of the scheme have repeatedly argued that the scheme does not work and only results to discrimination. The High Court affirmed this in the case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) that the government’s Right to Rent scheme causes racial discrimination in breach of the European Convention on Human Rights. The Judge was clear and arguably damning of the scheme, stating:
“In my judgment, the answer to this issue lies in the findings I have already made in relation to causation. 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. The State has imposed a scheme of sanctions and penalties for landlords who contravene their obligations and, as demonstrated, landlords have reacted in a logical and wholly predictable way. The safeguards used by the Government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective. In my judgment, in those circumstances, 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.
… I have come to the firm conclusion that the Defendant [the Government] has failed to justify the Scheme, indeed it has not come close to doing so. On the basis that the first question for the court to decide is whether Parliament’s policy, accorded all due respect, is manifestly without reasonable foundation, I so find. On that basis, there is no balancing of competing interests to be performed.
However, even if I am wrong about that, I would conclude that, in the circumstances of this case, Parliament’s policy has been outweighed by its potential for race discrimination. As I have found, the measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect…”
The Government have said that it will appeal the Decision so the scheme in its current form remains. It is disappointing that despite considerable evidence provided by JCWI and others that the scheme is discriminatory, the Government has failed to acknowledge this. They appear to adopt a “the end justifies the means” approach in that as long as a hostile environment can continue against illegal immigrants, any by-product of the scheme such as discrimination is an acceptable consequence.
Most will accept that Immigration control is crucial for any country. The Government is tasked with ensuring that an effective immigration system is in place. The Government’s power to introduce such laws must however be tempered with checks and balances and the High Court in this case has examined the effect of the scheme with reference to considerable evidence and has concluded that the “Right to Rent” scheme is discriminatory. It is baffling that the Government petulantly insists in its continuance of the scheme. It is akin to the controversial “Certificate of Approval” process that previously required couples to obtain permission to marry from the Home Office. That scheme was in force for years despite a finding by the House of Lords judgment in Baiai (30th July 2008), that it was discriminatory. The Government finally abandoned the scheme on the 9th of May 2011, three years after the Court’s Decision against the scheme. I hope that the Government will not take as long to abolish the “Right to Rent” scheme which is clearly untenable in its continuance.