Joint Council for Welfare of Immigrants: how we beat the hostile environment in court
Today, the High Court has ruled that the ‘Right to Rent’ checks, a key policy of Theresa May’s so-called “hostile”, now rebranded as “compliant environment”, cause landlords to discriminate against prospective tenants on racial and nationality grounds. Mr Justice Martin Spencer has handed down a damning verdict excoriating the government, saying that the scheme not merely risks causing illegal discrimination, but is certain to do so, as would any scheme of this kind. Furthermore, the judge found that the government has “not come close” to justifying the discriminatory impact of the scheme, especially since it had failed to collect any data demonstrating that it actually works in its stated aim: making undocumented migrants leave the country.
The ruling has significant implications for the development of human rights and discrimination law. Having found the scheme caused landlords to discriminate, Spencer J had to consider whether this actually came within the ambit of Article 8 for the purposes of engaging Article 14 of the European Convention on Human Rights. Accepting that he was developing the law on this, he said
Although Article 8 does not give anyone the right to a home, in my judgment it gives everyone the right to seek to obtain a home for themselves and their family even if they are eventually unsuccessful, and the playing field should be even for everyone in the market for housing, irrespective of their race and nationality. He goes on to say
If the Government’s arguments were correct, a law could be passed which enacted a rule that landlords may only rent to white, British nationals and this would not engage Article 8 and therefore not offend against the Convention because Article 8 does not give a right to a home, and this would not be a positive modality case. That cannot be right.
Spencer J also gave short shrift to the argument that landlords were responsible for the discrimination, saying that “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”.
This is a significant victory for us at JCWI, representing as it does a major blow to the logic of the whole hostile environment. We hope that it will have repercussions for its other pillars: NHS charging, bank checks and employment checks. Under the circumstances it is unsurprising that the government is seeking to appeal the ruling, seemingly unconcerned about the optics of spending further public money on fighting for the right to cause racial discrimination. It seems that in the pursuit of looking “tough” on immigration, a return to the outright racism that existed in the housing market in the ‘50s is alright by Sajid Javid.