Case law update: R (on the application of JCWI) v SSHD  EWCA Civ 542
By Ryan Kohli
In an important judgment, the Court of Appeal has allowed the Government’s appeal and has upheld the “Rent to Rent” statutory provisions as lawful.
The Joint Council for the Welfare of Immigrants (“JCWI”) brought a challenge to the compatibility of ss. 20-37 of the Immigration Act 2014 (“the Scheme”) with Articles 14 when read with Article 8 of the European Convention on Human Rights. Specifically, it was argued that the inevitable consequence of the scheme was unlawful discrimination to certain categories of those with a right to abode but who were without British passports and without ethnically British attributes such as a ‘British’ name.
The relevant provisions create a statutory scheme designed to prevent irregular migrants from being able lawfully to rent accommodation in the open market and landlords are required to check that their tenants are not unlawfully present in the United Kingdom. The scheme applies to all “residential tenancy agreements” which includes all arrangements where a person is permitted to occupy a property as their only or main residence in return for payment of rent, unless the arrangement falls into one of the exclusions set out in Schedule 3.
In a Judgment extending to 181 paragraphs, the Court of Appeal held:
The evidence demonstrated that the Scheme did have some discriminatory impacts on potential tenants that do have the right of abode but do not have British passports and particularly those who have neither such passports nor ethnically British attributes such as their name. “But for” the Scheme the level of discrimination would be less (Para 75).
The relevant test for the Court to consider is whether the adverse effects of the measures are manifestly without reasonable foundation. Although that test has only previously been applied in provisions dealing with welfare benefits, the test is apt for application to other areas of socio-economic policy (Para 134).
Where there is a substantial degree of economic and/or social policy involved in a measure, the degree of deference to the assessment of the democratically accountable body should be accorded great weight because of the wide margin of judgment they have in such matters (Para 140).
Looking at the issue of justification for the discrimination, the Court was satisfied that it is justified on the basis that (Para 142-151):
(i) the Act of Parliament was implemented against the backdrop of EU Council Directive 2002/90/EC which requires Member States to adopt appropriate sanctions against a landlord who, for financial gain, assists a person who is not a national of a Member State to reside in a Member State. As such deference must be afforded to Parliament’s assessment of the public interest.
(ii) the aim of the Scheme is to reduce irregular immigration by encouraging irregular migrants to regularise their status by obtaining leave to remain or leaving the UK.
(iii) Parliament was aware of the risk of discrimination and proposed that the risk could be managed through section 33 of the 2014 Act which required the adherence to a published Discrimination Code of Practice.
(iv) the Scheme was not intended to be discriminatory: the discrimination is entirely coincidental.
(v) any discrimination is conducted by individual landlords not as agents for the state.
(vi) the nature and level of discrimination are relevant factors. The best evidence demonstrated that over the first 30 months of the operation of the Scheme 5-6% of landlords discriminated against potential tenants who did not have British passports. That discrimination will cause delay for regular immigrants who seek accommodation in the private rental market.
This is an important case for the entire housing sector and for lawyers in understanding how Articles 14 and 8 work in the context of apparently discriminatory statutory provisions.
It is the first reported case which extends the “manifestly without reasonable foundation” test beyond the sphere of welfare benefits and whilst there is a recognition that discriminatory impacts arise as a result of operation of the provisions, that is very much the beginning of the consideration of the lawfulness of the provisions rather than the end.
Whether the impact of statutory provisions is discriminatory for the purposes of Article 14 read together with 8 is a highly fact-sensitive exercise which requires a high hurdle to be crossed.
Ryan Kohli was instructed by the Secretary of State for the Home Department to draft the agreed note to which reference is made at Paragraph 78(iv) of the Judgment in this case for the benefit of the Court of Appeal.