Richard Ekins

The High Court’s ‘right to rent’ decision is a travesty

The political campaign against the UK’s immigration laws secured an important victory yesterday, with the High Court denouncing sections 20-37 of the Immigration Act 2014 as racially discriminatory – not by discriminatory intent or design but “indirectly”, by side effect. Those “right to rent” provisions make it unlawful for private landlords to rent property to persons unlawfully in the UK and so require landlords to check the immigration status of prospective tenants. Introduced on a trial basis in the West Midlands, the scheme was extended across England from February 2016. The Government’s intent has been to exercise its powers in the 2014 Act to extend the scheme across the entire UK.

The Joint Council for the Welfare of Immigrants, with support from the Residential Landlords Association and Liberty, persuaded the High Court that the legislation discriminates on the basis of race and nationality. The Court exercised its powers under the Human Rights Act 1998 to declare the legislation incompatible with the European Convention on Human Rights (ECHR). It also declared that it would be irrational and thus unlawful for the Government to extend the legislative scheme across the rest of the UK without further evaluating its effectiveness and discriminatory effect. This was and is an incredible judgment which should be reversed on appeal and/or by legislation.

The High Court reasoned that requiring landlords to check the immigration status of prospective tenants caused landlords to discriminate against those who had a right to rent – that is, who were not in the UK unlawfully – and yet who were not (white) British citizens. Article 14 of the ECHR provides that convention rights shall be secured without discrimination on the grounds of, among other things, race or national origin. The convention right to be secured without discrimination is in this case, the Court reasoned, the Article 8 right everyone has: “to respect for his private and family life, his home and his correspondence”.

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Written by
Richard Ekins

Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.

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