The Queen on the application of the Joint Council for the Welfare of Immigrants v Secretary of State for the Home Department (JCWI)

The claimant sought a declaration under section 4 of the Human Rights Act 1998 that Sections 20–37 of the Immigration Act 2014 (the Right to Rent Scheme) were incompatible with Articles 8 and 14 ECHR, and relief quashing or preventing extension of the Scheme on equality grounds. The court addressed (i) whether the Scheme fell within the ambit of Article 8, (ii) whether the Scheme caused discriminatory conduct by landlords on grounds of nationality and race, (iii) whether the State remained responsible for such discrimination, and (iv) whether the Scheme could be justified as proportionate.

The judge held that the Scheme falls within the ambit of Article 8 for the purposes of Article 14, that the evidence (surveys, mystery-shopping exercises and landlord testimony) established that the Scheme causes landlords to discriminate on grounds of nationality and race, and that the Government cannot escape responsibility where its statutory scheme foreseeably causes discrimination by private landlords. The Scheme was not justified: on balance the discriminatory effects, the lack of demonstrable efficacy and the absence of adequate monitoring meant the policy could not survive proportionality review. The court therefore made a declaration of incompatibility under section 4 HRA and a declaratory order that extending the Scheme to the devolved administrations without further evaluation would be irrational and breach section 149 Equality Act 2010.

Background and parties: The Joint Council for the Welfare of Immigrants (claimant) challenged the Home Office Scheme created by Sections 20–37 Immigration Act 2014 that places duties on landlords to check tenants' immigration status. The Secretary of State was defendant. The Residential Landlords Association, the Equality and Human Rights Commission and Liberty intervened. Hearing took place December 2018; judgment given 1 March 2019.

Relief sought: (i) a declaration under s.4 Human Rights Act 1998 that Sections 20–37 IA 2014 are incompatible with Articles 8 and 14 ECHR; and (ii) quashing or a declaration that any decision to roll-out the Scheme to Scotland, Wales or Northern Ireland without further evaluation would be unlawful, irrational and contrary to the public-sector equality duty (section 149 Equality Act 2010).

Issues framed: The court expressly addressed: (A) ambit — whether the Scheme falls within the ambit of Article 8 so Article 14 is engaged; (B) causation — whether the Scheme causes landlords to discriminate on nationality and race; (C) government responsibility — whether the State can be held responsible for discriminatory acts of private landlords that the Scheme foreseeably causes; (D) justification — whether the discriminatory effects are a proportionate means to legitimate immigration-control aims; (E) discretion under s.4 HRA and whether a declaration should be made; and (F) whether extension to the devolved nations without further evaluation would be irrational and breach s.149 Equality Act 2010.

Court’s reasoning:

• Ambit: The court accepted that Article 8 does not confer a free-standing right to a home but found the Scheme falls within the ambit of Article 8 for the purposes of Article 14 because it impairs the ability of persons to seek and obtain settled accommodation and, in particular, because racial discrimination is especially serious and the Convention should not permit legislation that foreseeably causes it.
• Causation: The court accepted the aggregated evidence — claimant mystery-shopping experiments (statistically analysed), multiple surveys (including landlord surveys), reports (including the Independent Chief Inspector of Borders and Immigration) and witness evidence from landlords and sector bodies — and inferred that the Scheme incentivises landlords to favour tenants with straightforward documentary evidence (for example passports), producing disparate disadvantage to non-British nationals and to ethnic minorities without passports.
• Government responsibility: Because the Scheme foreseeably and materially caused discriminatory conduct and the State’s safeguards (guidance, helpline, codes) had failed to prevent that outcome, the State remained responsible for the discrimination for Convention purposes.
• Justification: The court accepted the legitimate aim of immigration control and that a margin of appreciation exists, but concluded the Government had not justified the Scheme. The discriminatory effects were serious, the evidence of benefit was weak, monitoring and evaluation were inadequate, and the balance required by proportionality was not met.
• Remedies and PSED: The court concluded a declaration of incompatibility under s.4 HRA was appropriate and that any decision to commence the Scheme in the devolved administrations without further evaluation of efficacy and discriminatory impact would be irrational and in breach of s.149 Equality Act 2010.

Conclusion: The claim succeeded: the court declared Sections 20–37 IA 2014 incompatible with Article 14 read with Article 8 and declared that extending the Scheme to Scotland, Wales or Northern Ireland without further evaluation would be irrational and contrary to the PSED.

First instance: The claim succeeds. The court made a declaration under section 4 Human Rights Act 1998 that Sections 20–37 of the Immigration Act 2014 are incompatible with Article 14 ECHR taken with Article 8 ECHR. The court found (i) the Scheme falls within the ambit of Article 8 for Article 14 purposes, (ii) the Scheme causes landlords to discriminate on grounds of nationality and race, (iii) the Government is responsible for that discrimination where it foreseeably and materially causes it and fails to prevent it, and (iv) the Scheme was not justified as a proportionate means of achieving immigration-control objectives. The court also declared that any decision to roll out the Scheme to Scotland, Wales or Northern Ireland without further evaluation of efficacy and discriminatory impact would be irrational and breach section 149 Equality Act 2010.