Right to Rent scheme violates human rights laws and causes discrimination, High Court rules

The government’s controversial Right to Rent scheme is causing racial discrimination and violating human rights law, the High Court has found.

The law, which requires private landlords to check the immigration status of potential tenants, was found to violate the European Convention on Human Rights.

Judge Martin Spencer found the policy caused landlords to discriminate against both black and ethnic minority British people and foreign UK residents.

He also ruled that rolling out the scheme in Scotland, Wales or Northern Ireland without further evaluation would be “irrational” and breach equality laws.

“The evidence, when taken together, strongly showed 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,” Mr Justice Spencer told the court on Friday.

“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.”

Changes that came into force in 2016 required private landlords to check the immigration status of potential tenants, or face unlimited fines or even prison for renting to undocumented migrants.

Mr Justice Spencer said the government’s own evaluation of Right to Rent “failed to consider discrimination on grounds of nationality at all, only on grounds of ethnicity”, even though it was a “logical and wholly predicable” consequence.

“The safeguards used by the government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective,” the judgment continued.

“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.”

The judge found that Right to Rent had “little or no effect” on controlling immigration and that the Home Office had “not come close” to justifying it.

The legal challenge was launched by the Residential Landlords Association (RLA) and Joint Council for the Welfare of Immigrants (JCWI), which called Right to Rent a “key plank of Theresa May’s hostile environment” policy.

Chai Patel, JCWI legal policy director, said: “Now that the High Court has confirmed that Ms May’s policy actively causes discrimination, parliament must act immediately to scrap it.

“But we all know that this sort of discrimination, caused by making private individuals into border guards, affects almost every aspect of public life – it has crept into our banks, hospitals, and schools. Today’s judgment only reveals the tip of the iceberg and demonstrates why the Hostile Environment must be dismantled.”

John Stewart, policy manager for the RLA, called the ruling a “damning critique of a flagship government policy”.

“We have warned all along that turning landlords into untrained and unwilling border police would lead to the exact form of discrimination the court has found,” he added.

The Home Office’s own research – disclosed a week before the High Court case began – showed that a quarter of landlords would not be willing rent to anyone without a British passport

The RLA also found that more than half of landlords were less likely to rent to those with limited time to remain in the UK, while 20 per cent said that they were less likely to consider letting property to EU or EEA nationals.

Jon Sparkes, chief executive of housing charity Crisis, called on the government to scrap Right to Rent amid increasing homelessness.

“Every day, our frontline staff hear of the overwhelming difficulties faced by homeless people trying to find a tenancy in the already saturated rental market,” he added.

“This is made even harder if someone has to prove their immigration status, especially as official documents like passports can often be lost sleeping rough, moving from hostel to hostel, or fleeing domestic abuse – and replacements can be prohibitively expensive.”

A report published last year by the Independent Chief Inspector of Borders and Immigration concluded that the Right to Rent has “yet to demonstrate its worth as a tool to encourage immigration compliance” and was not being properly monitored.

Mr Justice Spencer found the scheme had not been effective in its main aim of controlling immigration, and even if it had, “I would have found that this was significantly outweighed by the discriminatory effect.

“But the nail in the coffin of justification is that, on the evidence I have seen, the scheme has had little or no effect and ... the defendant has put in place no reliable system for evaluating the efficacy of the scheme.

“In these circumstances, I find that the government has not justified this measure nor, indeed, come close to doing so.”

A Home Office spokesperson said an independent mystery shopping exercise found “no evidence of systemic discrimination”.

“We are disappointed with the judgment and we have been granted permission to appeal, which reflects the important points of law that were considered in the case. In the meantime, we are giving careful consideration to the judge’s comments,” he added.