High Court rules that the Right to Rent scheme would give rise to unlawful race discrimination but for a statutory exemption
Housing, Public Law and Judicial Review
In an earlier judgment from the other of these two conjoined judicial review claims, the High Court declared that the Right to Rent scheme is incompatible with the European Convention on Human Rights. That claim is on its way to the Court of Appeal, permission having been given by the trial judge.
In this claim, the claimant asserted that the issuing of notices of letting to disqualified persons (NLDPs), the cornerstone of the scheme, suffered myriad public law failings ranging from procedural unfairness to a failure to give reasons. While that ground of appeal was strenuously opposed by the Secretary of State in his detailed grounds and skeleton argument, it was conceded at the door of court, with the Home Office promising to introduce various safeguards to alleviate the issues that the claimant said arose.
The claimant separately alleged that the scheme gave rise to direct race discrimination because the power to serve a NLDP depended on a person’s nationality. The Secretary of State denied that that was the correct construction, inviting the High Court to find that the scheme was based on an applicant’s immigration status. The judge agreed with the claimant.
However, he went on to hold that that discrimination was permissible because it was carried out by the Secretary of State acting personally (notwithstanding the Secretary of State’s own evidence to the contrary) and/or because the departmental officials carrying it out were expressly authorised by the Immigration Act 2014 (notwithstanding the absence of any such authorisation in the Act) and/or that it was done in pursuance of the Act (notwithstanding a prior decision of the House of Lords under the Race Relations Act 1976 to opposite effect).
You can read the judgment here.
Riccardo Calzavara acted for the claimant, instructed by Derek Bernardi of Camden Community Law Centre.