R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department

The Court of Appeal allowed the Secretary of State's appeal against Martin Spencer J's declaration that sections 20–37 of the Immigration Act 2014 (the "Scheme" or "Right to Rent" regime) were incompatible with article 14 read with article 8 ECHR. The court accepted that the Scheme could produce discriminatory effects on the basis of nationality (and, by proxy, race) when landlords, seeking administrative convenience or to avoid sanctions, prefer prospective tenants with British passports. However, the court held that the legislative scheme as a whole is capable of being operated proportionately, that the public interest objective of immigration control is legitimate and that the collateral discriminatory effects were, on the available evidence and applying appropriate deference to Parliament on socio-economic policy, justified. The court therefore set aside the declarations made by the High Court and dismissed the claim for incompatibility and the PSED-based relief sought in respect of roll-out to the other home nations.

The Joint Council for the Welfare of Immigrants (a charity) brought judicial review proceedings challenging the lawfulness of Part 3 Chapter 1 (sections 20–37) of the Immigration Act 2014 (the "Scheme"), the statutory "right to rent" regime that requires landlords to check tenants' immigration status and exposes landlords to civil and criminal sanctions for letting to irregular migrants. The claimant sought declarations of incompatibility under the Human Rights Act (article 14 read with article 8 ECHR) and a declaration that rolling the Scheme out to Scotland, Wales and Northern Ireland without further evaluation would be irrational and in breach of the public sector equality duty (section 149 Equality Act 2010).

The core issues the court considered were:

• whether the facts of the case fell within the "ambit" (or scope) of article 8 for the purposes of article 14;
• whether the Scheme in practice caused discrimination on grounds of nationality and/or race (causation and evidential assessment);
• whether the state (the Secretary of State/Parliament) was responsible for any discriminatory effects attributable to landlords; and
• whether any discriminatory effects were objectively and reasonably justified (proportionality), including the applicable intensity of review and the relevance of the "manifestly without reasonable foundation" standard in socio-economic policy.

On the facts the court accepted there was evidence (mystery‑shopping exercises, multiple landlord surveys and anecdotal material) that some landlords discriminate in practice against prospective tenants without British passports and, in particular, those without ethnically British attributes. However, the court found that the evidence did not establish that discrimination was inevitable or of such a degree or consequence that the legislation was incapable of being operated proportionately. The appellate court emphasised the wide margin of judgment afforded to Parliament and the executive in social and economic policymaking, applied established proportionality principles (Bank Mellat/Bibi and related authorities) and concluded that the Scheme pursues a legitimate aim (immigration control), is rationally connected to that aim, and that its discriminatory effects are justified in the balancing exercise. The court therefore allowed the appeal and dismissed the cross-appeal. The court also held that it was premature and inappropriate to make the secondary declaration concerning roll-out and the PSED in light of the substantive outcome.

Appeal allowed; cross-appeal dismissed. The Court of Appeal accepted that the Scheme has produced some discriminatory effects against those without British passports (and, as a proxy, some racialised treatment) but concluded the Scheme is capable of being operated proportionately, that Parliament’s socio-economic policy judgment deserves substantial deference and, on the evidence and applying the relevant proportionality/manifestly without reasonable foundation analysis, the discriminatory effects did not render the statutory scheme incompatible with article 14 read with article 8 or unlawful under the PSED.

Appeal from the Administrative Court (Martin Spencer J) ([2019] EWHC 452 (Admin)) to the Court of Appeal, resulting in judgment [2020] EWCA Civ 542 allowing the appeal and dismissing the claimant's cross-appeal.