The immigration hostile environment: high court rules that right to rent checks breach human rights

top London immigration solicitors and Immigration charities were delighted to learn of the high court ruling that last week decided the Home Office hostile environment rules on right to rent checks are discriminatory and breach Human Rights.

The Home Office introduced the right to rent checks as part of its hostile environment policy aimed at preventing illegal immigrants from renting properties in England. The intention behind the hostile environment policy is to make life for illegal migrants and over stayers so difficult that remaining in the UK is not an attractive option.

Campaigners against the hostile environment and in particular the right to rent checks claimed that the checks were unfair on private landlords. They said property owners, who are not trained UK Visas and Immigration officials experienced in checking Immigration paperwork, should not be policing the Home Office hostile environment policy. Equally, campaigners argued that the right to rent checks are unfair on genuine migrant tenants. There was clear evidence to show that the right to rent checks were putting property owners off from renting to anyone perceived to be foreign and therefore generating extra hassle and paperwork for the property owner.

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top London immigration solicitors advise that the right to rent scheme, which requires landlords to check the Immigration status of tenants, was introduced in England as part of the hostile environment policy in the 2014 Immigration Act.

The right to rent scheme requires landlords to carry out checks on prospective tenants, for example, looking at their passport or visa to ensure that the potential tenant has a right to be in the UK and consequently a “right to rent”.

The best London immigration solicitors might have thought that the right to rent checks were draconian in nature and off putting to tenants. However, from a landlord’s perspective, they made renting a property a potentially perilous job. That is because failure to carry out the right to rent checks is a criminal offence, carrying a maximum prison term of five years or an unlimited fine.

The high court decided 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 Home Office right to rent scheme causes racial discrimination and is in breach of the European Convention on Human Rights.

The Joint Council for the Welfare of Immigrants brought the court application and presented evidence of how the right to rent scheme is discriminatory. A criticism made of the Home Office was that the government department had not tested or monitored the right to rent scheme for discrimination.

The applicants showed by providing evidence from a “mystery shopper” experiment that whilst there was no racial discrimination if a potential tenant had a British passport, there was racial discrimination if a potential tenant sounded foreign or did not have a British passport. The Home Office laid the blame at the door of landlords, not the right to rent checks. The high court judge disagreed with the Home Office and held that it was the hostile environment policy of right to rent checks that was creating the discrimination by landlords against some classes of potential tenant.

The high court judge declared the right to rent scheme incompatible with the Human Rights Act 1998 and declared that extending the right to rent scheme from England to the rest of the UK would be irrational and unlawful.

The high court judge said the right to rent scheme had “little or no effect” on the Home Office aim of controlling Immigration and even if it the court had found that the checks controlled Immigration, the benefits would be “significantly outweighed by the discriminatory effect”.

The best London immigration solicitors and the Residential landlords Association welcomed the court decision. The Home Office said it was disappointed by the court decision. The Home Office has been granted permission to appeal the decision.

The future of the Immigration hostile environment

The case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) is an exciting development for migrants and the top London immigration solicitors. That is because of the implications of the decision on other areas of the Home Office hostile environment policy.

For example, if the high court has ruled that right to rent checks are discriminatory, what is there to distinguish between the discrimination suffered by potential tenants with the discrimination faced by employees who are subject to hostile environment right to work checks? After all, employers face similar penalties if they do not carry out right to work checks as property owners’ face with the right to rent check. The top London immigration solicitors see the high court case as likely to be appealed by the Home Office to the court of appeal as otherwise charities and Immigration bodies are likely to launch similar challenges to other aspects of the Home Office hostile environment policy.

OTS Solicitors are specialist in Immigration law matters and are recommended for Immigration law in the leading law directory, Legal 500. The firm have Law Society accredited solicitors’ status as trusted specialists in Immigration law.