High Court declares the Right to Rent scheme incompatible with the European Convention on Human Rights

01 Mar 2019

Housing, Public Law and Judicial Review

The Right to Rent scheme imposes obligations on landlords to take measures to ensure that they do not provide private accommodation to disqualified persons. Landlords who fall foul of the scheme face civil penalties and/or criminal sanctions, as do agents acting on their behalf; disqualified occupiers face summary eviction.

The Joint Council for the Welfare of Immigrants (JCWI) brought a judicial review asserting that the scheme is incompatible with art.14 ECHR because it causes landlords to commit nationality and/or race discrimination. A declaration was sought to the effect that rolling out the scheme in Scotland, Wales, or Northern Ireland without carrying out further evaluation would be irrational. The claim was supported by interventions from the National Council for Civil Liberties, the Equality and Human Rights Commission, and the Residential Landlords Association.

In relation to the human rights challenge, the JCWI asserted that (i) art.8 was engaged, alternatively the case fell within its ambit, (ii) the scheme caused nationality and/or race discrimination which (iii) could not be justified, and that (iv) it was appropriate to declare that the scheme was incompatible with the ECHR. The Secretary of State for the Home Department (SSHD) submitted that (i) the scheme did not come within the ambit of art.8, (ii) the State was not responsible for any discrimination perpetrated by landlords, (iii) any discrimination was in any event justified because the scheme pursued the legitimate objective of immigration control, and (iv) no declaration of incompatibility should be made in any event.

Martin Spencer J held that the scheme both engaged and came within the ambit of art.8 (at [61], [66], [68]-[69]). He found that the evidence showed that landlords are discriminating against potential tenants on grounds of nationality and race because of the scheme, so that the State is responsible for the discrimination (at [93], [96], [105]). He then held that, notwithstanding the wide margin of appreciation to which the State is entitled, “the particular abhorrence with which racial discrimination is regarded” led to the firm conclusion that the SSHD had “not come close” to justifying the scheme (at [121]-[123]). Finally, Martin Spencer J determined that it was appropriate to declare the scheme incompatible with the ECHR (at [127]).

Martin Spencer J finally held that rolling out the scheme to the devolved territories would be irrational and a breach of s.149 Equality Act 2010, particularly because of the earlier finding that the scheme was discriminatory and inefficacious (at [130]-[131], [133]).

You can read the judgment here

Riccardo Calzavara acted for Ms Goloshvili, instructed by Derek Bernardi of Camden Community Law Centre, in the conjoined judicial review claim of R (Goloshvili) v SSHD

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