R. (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department, [2019] EWHC 452 (Admin)

Full Judgment

Article - Kings Legal Clinic

Summary
A pilot scheme under the Immigration Act 2014 Pt 3 Ch.1, imposing obligations on landlords to take measures to ensure that they did not provide private accommodation to tenants who were disqualified as a result of their immigration status, was discriminatory and incompatible with ECHR art.14 in conjunction with art.8. The secretary of state's decision to extend the scheme in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and constitute a breach of the Equality Act 2010 s.149.

Abstract
The claimant applied for judicial review seeking a declaration that the Immigration Act 2014 Pt 3 Ch.1 , namely ss.20-27, was incompatible with ECHR art.14 in conjunction with art.8.

The provisions had introduced a scheme that imposed obligations on landlords to take measures to ensure that they did not provide accommodation to those who were disqualified as a result of their immigration status. The purpose of the scheme was to tackle and discourage illegal residence and reduce the number of tenancies available to those who were in the UK illegally, in order to ease the pressure on the housing market for lawful residents and to enable rogue landlords who deliberately exploited the situation of illegal immigrants to be penalised or prevented from doing so. The claimant had carried out a "mystery shopper exercise" by emailing landlords, using fictitious prospective tenants who were as similar to each other as possible save for certain key characteristics relating to citizenship, ethnic/national origin, migration status and the types of documentation that they needed to produce. It also published a research report that surveyed landlords which asserted that the scheme was encouraging discrimination. It also said that there was no evidence that the scheme was encouraging irregular migrants to leave the UK. The claimant contended that the scheme caused landlords to commit nationality and/or race discrimination against those who were entitled to rent, with the result that they were less able to find homes than white British citizens. The scheme had been set up in a pilot area but there were plans to roll it out nationwide. The claimants sought an order to quash a decision to extend the scheme to the rest of the UK on the ground that it breached the Equality Act 2010 s.149.

The claimant contended that (1) art.8 and art.14 were engaged by the scheme; (2) it caused landlords to behave in a discriminatory way; and (3) it could not be justified because it was not a proportionate way of achieving a legitimate aim.

Held Application granted.

ECHR art.8 - Article 8 did not give anyone the right to a home, but it gave everyone the right to seek to obtain a home for themselves and their family. The playing field had to be even for everyone in the market for housing, irrespective of their race and nationality. Where the state interfered with the process of seeking to obtain a home, it had to do so without causing discrimination. The way the scheme operated impaired the ability of an individual to acquire settled accommodation in which to enjoy a private and family life and was enough to bring it within the scope of art.8 (see para.68 of judgment).

Causation - The evidence included the claimant's research report and a report of the Independent Chief Inspector of Borders and Immigration from 2016. When taken together, the evidence strongly showed not only that landlords were discriminating against potential tenants on grounds of nationality and ethnicity but also that they were doing so because of the scheme. There was a consistency through the surveys and arising from the mystery shopper exercises so show that that was happening, and the causal link with the scheme was not only asserted by the landlords but was a logical consequence of the scheme (para.93).

Justification - The secretary of state had failed to justify the scheme and had not come close to doing so. The evidence showed that the measures had a disproportionately discriminatory effect. Even if the scheme had been shown to be efficacious in playing its part in the control of immigration, that would be significantly outweighed by the discriminatory effect. In addition the evidence showed that the scheme had little or no effect. The secretary of state had not put into place a reliable system for evaluating the efficacy of the scheme. (paras.123-124).

Outcome - An order was made pursuant to the Human Rights Act 1998 s.4, declaring that ss 20-37 of the 2014 Act were incompatible with art.14 in conjunction with art.8. A declaration was made that a decision by the secretary of state to commence the scheme in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and constitute a breach of s.149 of the 2010 Act (para.134).


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