A Court of Appeal has ruled that the Home Office’s controversial Right to Rent scheme is legal, despite finding that some landlords are engaging in racial discrimitaion as a result of the policy.
Right to Rent, a key plank of the government’s “hostile environment” policy, requires landlords to check whether prospective tenants are in the UK legally before letting to them. It has attracted criticism from landlords, tenants’ groups and human rights organisations.
Last year a High Court judgement ruled that the scheme was unlawful and had caused discrimination against both foreign nationals and minority ethnic Brits, while having “little to no effect” on controlling immigration.
The Home Office immediately said it would appeal the judgement, and hearings took place earlier this year.
In a judgement handed down yesterday, the Court of Appeal upheld the High Court’s finding that some landlords discriminate against people without a British passport because of the scheme, blaming “administrative convenience and a fear of the consequences of letting to an irregular immigrant”. Landlords can face hefty fines and even prison sentences if they fail to carry out the proper checks.
However, it said the scheme was not unlawful. The judgement found the legislation was “a proportionate means of achieving its legitimate objective and thus justified”.
Lord Justice Hickinbottom said: "Whilst discrimination in all its forms is, of course, abhorrent, the scheme does not intend, encourage or directly create discrimination. Indeed, far from it.”
Hickinbottom said where landlords discriminated on the basis of nationality as a result of the checks, “the discrimination is entirely coincidental, in that the measure does not unlawfully discriminate against the target group but only collaterally.”
Lawyers for the Home Office had argued that the government was not to blame for landlords "choosing" to discriminate against some prospective tenants, as the legislation instructs them not to do so.
Hickinbottom also said most landlords did not discriminate as a result of the policy, and that the judgement had taken this into account.
"The evidence does not suggest that it is impossible for even those against whom landlords discriminate to get private housing at all… the evidence cannot support the contention that there are potential tenants who will never obtain private accommodation," he said.
The Joint Council for the Welfare of Immigrants will appeal the judgement in the Supreme Court.
The charity’s legal policy director, Chai Patel, said the scheme must be scrapped.
“The Home Office has always maintained that this racial discrimination wasn’t caused by the scheme. Now we have two court rulings confirming that the government is causing racial discrimination in the housing market against ethnic minority British people, like the Windrush generation,” he said.
“At a time when our lives depend on our ability to stay at home safely, ethnic minorities and foreign nationals are being forced by the government to face discrimination in finding a safe place for them and their families to live.”
John Stewart, policy manager for the National Residential Landlords Association, said: “This is disappointing news as judges agree the scheme is having little impact in meeting its objectives, yet its putting a huge amount of pressure on landlords who are torn between meeting their Right to Rent obligations on the one hand and being accused of discrimination on the other.”
Immigration minister Chris Philp said in a statement: "I am delighted the Court of Appeal has vindicated the use of the Right to Rent scheme and found the policy to be lawful, in the public interest and consistent with human rights law.
“As we have made clear throughout, the scheme ensures that only those with a legal right to be in the UK are able to access benefits and services and discourages people from entering the country unlawfully.”