The government’s hostile environment policies have come under considerable scrutiny in the last few years, particularly since the Windrush scandal. One key element of this policy was the introduction of Right to Rent checks, turning landlords into immigration enforcers. 

Last year the High Court declared the regime incompatible with the Human Rights Act, as it led to discrimination on the basis of nationality and race. The Court of Appeal has this week determined that, while it does lead to discrimination, the regime itself is not unlawful and the decision whether to end it was one for Parliament to make.

Evidence was presented by the Joint Council for the Welfare of Immigrants (JCWI), a charity dedicated to fighting unjust laws and practices causing discrimination and to supporting vulnerable individuals and families, that just under half of landlords favoured white British people over black and minority ethnic (BAME) people purely on the basis it was administratively easier. This meant that BAME people on average took about twice as long to find somewhere to live. 

This news is not unexpected as abundant warnings and even the government’s own reports advised of this before the scheme was even piloted and throughout the course of the pilot.  As a result, the Court of Appeal determined that Parliament was well aware that the regime could lead to discrimination but deemed this an acceptable risk in view of the policy aims. 

Two questions follow from this: what level of discrimination is caused, and is it justified in order to achieve its goal? 

The answer to the first is “a lot”. The findings of the Windrush Lessons Learned Review were extremely critical of the Home Office’s policies and culture with regard to ignorance or dismissal of the discriminatory impact of the hostile environment, including the Right to Rent regime.  It recommended a full review of the hostile environment policy and measures – individually and cumulatively. 

Unfortunately, the government has been unable even to show that the goals of the hostile environment are being achieved. This was another reason the High Court last year deemed the regime not justifiable.  However, the Court of Appeal determined that the effectiveness of the scheme is a matter of judgment for Parliament.

It remains to be seen what action Parliament or the Home Office will take with regard to the findings of the Windrush Lessons Learned Review or the Right to Rent regime. In the meantime JCWI have indicated that they will appeal this decision in the Supreme Court.

If you have any questions about the issues raised in this update, then please do get in touch with our Immigration team.