The High Court ruled this morning on a legal challenge to “Right to Rent”, the hostile environment policy requiring immigration checks by landlords, brought by the Joint Council for the Welfare of Immigrants and the Residential Landlords Association. The government lost: the judge found that the scheme violates the European Convention on Human Rights, because of “convincing evidence that [it] causes landlords to behave in a discriminatory way, and in particular in a racially discriminatory way”.
It’s a huge win for migrant rights. The immediate consequences of the ruling are quite legally complex, because judges in the UK cannot strike down legislation under the ECHR, but it should stop Right to Rent being rolled out in Scotland, Wales and Northern Ireland and also lead to changes to the existing scheme in England. But what does it mean for the rest of the government’s hostile – or ‘compliant’ – environment?
Right to Rent is just one of a large number of policies that form part of the hostile environment, including immigration status checks by employers, NHS trusts, schools and authorities issuing driver’s licences.
Among them, it’s unusual in the sheer scale of evidence that has built up since 2014 to demonstrate its flaws. The government’s own evaluation of the pilot found some potential for racial discrimination and, bizarrely, did not even investigate the risk of discrimination on grounds of nationality. The decision to continue with the scheme had already been taken before the evaluation was published, but multiple independent assessments have subsequently found that Right to Rent causes discrimination.
We summarised this evidence in our recent report on post-Brexit immigration policy. Some key points are that the government’s independent chief inspector for immigration found in 2018 that the Home Office had made almost no effort to contact landlords to ensure they conducted immigration checks fairly, and that there was no evidence the scheme helped achieve any of the government’s policy objectives. A JCWI evaluation in 2017 found significant evidence of discrimination, including discrimination actively created by Right to Rent: while there was no difference in treatment of white and BME tenants who could provide a passport, tenants who were British citizens but had no passport were more likely to receive a negative response if they were BME than if they were white. This point seems to have been particularly influential in the High Court, which found that “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.”
Evidence on the discriminatory and harmful effects of other hostile environment policies is not, at this stage, as overwhelming. But there are three reasons to think this challenge could still provide a model for fighting other parts of the hostile environment.
- The judge found that the government had not “come close” to adequately justifying Right to Rent.
Even where evidence of discrimination is not as unarguable, cases could still succeed given that today’s ruling does not even seem to have been much of a close-run thing.
- The court appears to have been particularly unimpressed that the government was not properly monitoring the effectiveness of the scheme or making serious efforts to reduce the potential for discrimination.
These issues are widespread in the hostile environment, which is mostly defended with the government’s “conviction that [it] is ‘right’ in principle … rather than on any evidence“. Part of the judge’s reasoning was that the government’s approach to evaluating Right to Rent had not been “detailed, thorough and conscientious”, making it harder for it to defend the scheme – and the same undoubtedly goes for many other hostile environment measures.
- Several other parts of the hostile environment work in very similar ways to Right to Rent
Immigration checks by employers and NHS trusts, like Right to Rent, require unqualified people to interpret and apply immigration law. The evidence that does exist around other hostile environment measures points in the same direction: errors are frequent, consequences are serious and government implementation does “not appear to appreciate the seriousness of such errors for the individuals affected“.
The Home Office will undoubtedly appeal this ruling, and legal challenges are always imperfect ways of achieving policy change. But today’s judgement is an important watershed: a judicial finding that the hostile environment creates racial discrimination gives important ammunition for ongoing legal and political battles against anti-immigrant policy.