Court of Appeal rules on Right to Rent

In a judgment handed down today, the Court of Appeal has allowed the Government’s appeal against the High Court’s decision that the “Right to Rent” scheme is unlawfully discriminatory and incompatible with the European Convention on Human Rights (ECHR).

In a landmark judgment in March 2019, Mr Justice Martin Spencer had accepted the case presented by the Joint Council for the Welfare of Immigrants (JCWI) that the Scheme – which prohibits landlords from renting properties to people from outside Europe who do not have leave to remain in the UK – had caused landlords to discriminate on grounds of race and nationality in relation prospective tenants who do have the right to rent but don’t have a British passport. The decision was the first time a UK court had found legislation to be incompatible with Article 14 of the ECHR on the basis that it causes discrimination by private third-parties, rather than by the state directly.

The majority of the Court of Appeal (Lord Justice Hickinbottom and Lord Justice Henderson):

  • Accepted that the Scheme has caused nationality and race discrimination against people who do have the right to rent but do not have British passports (para 66);

  • Accepted that, although the discrimination is carried out by private landlords, the Government could be held responsible in principle and so had to justify the discriminatory effect (para 80); and

  • Were prepared to proceed on the basis that the effects of the scheme were sufficiently connected to the right to respect for individuals’ home, private life and family life to come within the “ambit” of Article 8 of the ECHR (para 111).

However, ultimately, the Court found that the Government’s aims when introducing the Scheme justified the discriminatory effect. In particular, the Court said it could not be presumed that when enacting the legislation Parliament hadn’t accepted that discrimination by some private landlords was justified by the aims of the policy.

The JCWI are seeking permission to appeal to the Supreme Court.

In both the High Court and the Court of Appeal, Jamie Burton (led by Philippa Kaufmann QC) was instructed on behalf of the JCWI; and Martin Westgate QC, James Kirk and Daniel Clarke were instructed by Liberty as interveners.