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

A legislative scheme capable of being operated compatibly with Convention rights in all or nearly all cases is not inherently incompatible merely because some private persons implement it unlawfully or disproportionately.

Where legislation implements socio-economic policy, the court must balance its adverse discriminatory effects against its contribution to the legitimate objective. Substantial weight is due to Parliament’s assessment, although discrimination based on nationality or race calls for close scrutiny. The private rental immigration-checking scheme struck a fair balance. Its limited collateral discrimination was outweighed by its more than insignificant contribution to immigration control.

The Secretary of State appealed from Martin Spencer J’s decision in [2019] EWHC 452 (Admin). The judge had declared that sections 20–37 of the Immigration Act 2014, governing right-to-rent checks in England, were incompatible with article 14 read with article 8 of the Convention. He also declared that extending the scheme elsewhere in the United Kingdom without further evaluation would be irrational and contrary to the public sector equality duty.

The respondent charity alleged that the scheme caused landlords to discriminate against lawful prospective tenants who lacked British passports, particularly those without apparently British ethnic attributes. The appeal concerned whether such discrimination existed, whether it was attributable to the scheme, whether the circumstances fell within the scope or ambit of article 8, whether any difference in treatment was justified, and whether the declarations were appropriate.

1. Appeal allowed and cross-appeal dismissed. The scheme was not incompatible with article 14 read with article 8. The declarations made below were set aside.
2. Hickinbottom LJ, with whom Henderson LJ agreed, held that the evidence established some discrimination against prospective tenants lacking British passports, especially those also lacking apparently British ethnic attributes. The scheme caused an increased level of that discrimination in a “but for” sense. The judge below had nevertheless overstated its scale and consequences. The best evidence of actual conduct indicated discrimination by about 5–6% of landlords, while most landlords operated the scheme without discrimination.
3. Article 8 does not confer a general right to obtain a home. Delay and inconvenience in obtaining rented accommodation did not establish interference within article 8(1). The cross-appeal on direct engagement of article 8 therefore failed. Hickinbottom LJ considered the wider ambit question difficult and unnecessary to decide. He assumed in the respondent’s favour that the circumstances fell within article 8’s ambit. Davis LJ would have held that the connection was merely tenuous and therefore insufficient.
4. A facial proportionality challenge to legislation faces a high hurdle. Legislation is not inherently incompatible where it can be operated compatibly with Convention rights in all or nearly all cases. The scheme was capable of non-discriminatory and proportionate operation in every case. This provided a complete answer to the challenge.
5. In any event, the discriminatory effects were justified. The scheme pursued the important legitimate objective of supporting coherent immigration control; it was rationally connected to that objective; and no less intrusive measure would achieve the objective without unacceptable compromise. In balancing its effects, substantial weight was due to Parliament’s assessment in an area of socio-economic and immigration policy. The scheme made a more than insignificant contribution to its objective. Its collateral discrimination was unintended, prohibited by the Equality Act 2010, addressed by the statutory discrimination code, and practised by only a minority of landlords. A fair balance had therefore been struck.
6. Davis LJ additionally concluded that the scheme and the state were not responsible for discrimination arising from landlords’ unlawful choices. The other members treated that consideration as relevant principally to justification.
7. The declaration concerning possible extension beyond England was premature because no extension decision had yet been made. Any need for further evaluation was for the Secretary of State to consider when making such a decision.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed and the respondent’s cross-appeal was dismissed. The declarations made below were set aside: [2020] EWCA Civ 542 .
2. High Court, Administrative Court: Martin Spencer J allowed the judicial review and declared the scheme incompatible with article 14 read with article 8. He also declared that extension without further evaluation would be irrational and contrary to the public sector equality duty: [2019] EWHC 452 (Admin) .