Joint Council for the Welfare of Immigrants, R (On the Application Of) v Secretary of State for the Home Department

A legislative scheme may fall within the Article 8 ambit for the purposes of Article 14 even though Article 8 confers no right to be provided with a home. Where State-imposed sanctions predictably cause private actors to discriminate, the State may bear responsibility for that discrimination. A scheme causing substantial nationality or race discrimination must be justified by a fair balance between its objectives and its discriminatory effects. A declaration of incompatibility is appropriate where the legislation is inherently likely to operate incompatibly with Convention rights. A decision to extend such a scheme without effective evaluation of its efficacy and discriminatory impact may be irrational and breach the public-sector equality duty.

The claimant sought judicial review of the right-to-rent scheme established by sections 20–37 of the Immigration Act 2014. The scheme required landlords to check tenants’ immigration status and imposed civil and criminal sanctions for renting to disqualified persons.

The claimant relied on Articles 8 and 14 ECHR, contending that the scheme caused landlords to discriminate against persons perceived to be foreign, including lawful tenants without British passports. It also challenged the proposed extension of the scheme to Scotland, Wales and Northern Ireland without further evaluation. The central issues were whether the scheme fell within the ambit of Article 8, caused discrimination for which the Government was responsible, was justified, and whether further extension without evaluation would be irrational and breach section 149 of the Equality Act 2010.

1. Declaration of incompatibility. Sections 20–37 of the Immigration Act 2014 were declared incompatible with Article 14 ECHR in conjunction with Article 8.
2. Ambit. Article 8 does not directly confer a right to obtain a home. The scheme therefore did not directly interfere with Article 8 rights. However, Article 14 applied because the scheme impaired the ability of persons generally to seek settled accommodation in which to enjoy private and family life. The connection was more than tenuous. The court rejected the contrary approach in the obiter observations of Goss J in R (HA) v Ealing LBC.
3. Causation and responsibility. The evidence, considered cumulatively, established discrimination on grounds of nationality and ethnicity. The scheme’s sanctions, administrative burdens and risks predictably encouraged landlords to prefer tenants with British passports. The discrimination was caused by the scheme, rather than being merely an independent choice by private landlords. The Government could not avoid Convention responsibility by pointing to private implementation or ineffective guidance.
4. Justification. Immigration control was a legitimate aim and the Government enjoyed a substantial margin of appreciation. Applying the four-stage proportionality approach identified in In re Medical Costs for Asbestos Diseases, the discriminatory effects outweighed the scheme’s benefits. The Government had not shown that the scheme was effective and had failed to treat the discriminatory impact as a cost requiring justification.
5. Remedy and proposed extension. The challenge to an actual decision to extend the scheme was inappropriate because no such decision had been made. However, a declaration concerning the proposed decision was permissible. Extending the scheme to Scotland, Wales or Northern Ireland without effective evaluation of its efficacy and discriminatory impact would be irrational and breach section 149 of the Equality Act 2010.

First instance judicial review decision. No appellate history was stated in the judgment.