The government has won an appeal over its controversial right to rent scheme, which was last year ruled by the high court to be racially discriminatory.
The scheme, which is a key element of the Home Offices “hostile environment” for illegal migration, requires private landlords to check the immigration status of tenants and prospective tenants. Those landlords that fail to complete checks can face fines and up to five years in prison.
The high court found last year that requiring landlords to check the immigration status of prospective tenants was unlawful and racially discriminatory because it caused landlords to discriminate against British citizens from minority ethnic backgrounds and against foreign nationals who had a legal right to rent.
The court ruled that the policy had a “disproportionately discriminatory effect”, as well as “little to no effect” on controlling immigration, and was incompatible with the right to freedom from discrimination, enshrined in European human rights legislation.
But the Home Office appealed against that ruling, and the appeal court found that while some landlords did discriminate against would-be tenants who had no British passport, the scheme was nevertheless “justified” as a “proportionate means of achieving its legitimate objective”.
The judgement acknowledged that some landlords discriminated against people without a British passport due to “administrative convenience and a fear of the consequences of letting to an irregular immigrant”, but added that most complied with the requirements without discriminating.
Lawyers acting for the Home Office told the appeal court in January that the government could not be held responsible for landlords “choosing” to discriminate by preferring tenants with a UK passport. About 17% of the population in England and Wales do not hold a passport.
The Joint Council for the Welfare of Immigrants (JCWI), which opposed the governments appeal, argued that the state “plainly is responsible for the discriminatory effects of its actions, whether intended or not”.
The JCWI said it was preparing to appeal against the ruling at the supreme court and renewed calls for the scheme to be repealed.
Chai Patel, the JCWIs legal policy director, said that the appeal court had upheld the high courts finding that landlords were discriminating against migrants or people of ethnic minority backgrounds as they sought to adhere to the right to rent legislation. However, the ruling did not conclude that this meant the scheme was in violation of human rights law.
“The Home Office has always maintained that this racial discrimination wasnt caused by the scheme. Now we have two court rulings confirming that the government is causing racial discrimination in the housing market against ethnic minority British people, like the Windrush generation,” Patel said. “At a time when our lives depend on our ability to stay at home safely, ethnic minorities and foreign nationals are being forced by the government to face discrimination in finding a safe place for them and their families to live.”
The junior immigration minister Chris Philp welcomed the decision. “As we have made clear throughout, the scheme ensures that only those with a legal right to be in the UK are able to access benefits and services, and [it] discourages people from entering the country unlawfully. This is also a question of fairness to UK citizens and the many people who come to the UK legally who all need to access housing.”