R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] EWHC 452 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/598/2018 |
| Date | 01 March 2019 |
[2019] EWHC 452 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Martin Spencer
Case No: CO/598/2018
and
Miss Phillipa Kaufmann QC and Mr Jamie Burton (instructed by Leigh Day) for the Claimant
Mr David Pievsky and Mr David Lowe (instructed by Government Legal Department) for the Defendant
Mr Justin Bates and Ms Brooke Lyne (instructed by Anthony Gold Solicitors) for Residential Landlords Association
Mr Nick Armstrong for Equality and Human Rights Commission, by written submissions only
Mr Martin Westgate QC and Mr James Kirk and Mr Daniel Clarke (instructed by Liberty) for the Intervenors
Hearing dates: 18, 19, 20 and 21 December 2018
Introduction
Would-be migrants seek to come to this country because of, among other things, their perception that we live in a fair, free and democratic society founded upon the rule of law, a society where they will not be persecuted but allowed to flourish. Lord Nicholls of Birkenhead, in Ghaidan v Godin-Mondoza [2004] 2 AC 557, movingly articulated why discrimination is anathema to all that we hold precious in our society:
“Discrimination is an insidious practice. Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced. Of course all law, civil and criminal, has to draw distinctions. One type of conduct, or one factual situation, attracts one legal consequence, another type of conduct or situation attracts a different legal consequence. To be acceptable these distinctions should have a rational and fair basis. Like cases should be treated alike, unlike cases should not be treated alike. The circumstances which justify two cases being regarded as unlike, and therefore requiring or susceptible of different treatment, are infinite. In many circumstances opinions can differ on whether a suggested ground of distinction justifies a difference in legal treatment. But there are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment. Differences of race or sex or religion are obvious examples. Sexual orientation is another. This has been clearly recognised by the European Court of Human Rights: see, for instance, Fretté v France [2003] 2 FLR 9, 23, para 32. Unless some good reason can be shown, differences such as these do not justify differences in treatment. Unless good reason exists, differences in legal treatment based on grounds such as these are properly stigmatised as discriminatory.”
For legislation to be castigated as discriminatory is therefore a serious accusation, and is to be treated seriously by any court before which such an accusation is made.
Pursuant to permission granted by Mr Justice Jay on 6 June 2018, the Joint Council for the Welfare of Immigrants (the Claimant) seeks judicial review by way of a declaration that, pursuant to Section 4 of the Human Rights Act 1998, Sections 20 – 37 of the Immigration Act 2014 are incompatible with Articles 14 and 8 of the European Convention on Human Rights (“ECHR”). An order is further sought quashing the alleged decision of the Secretary of State to extend the scheme to Scotland, Wales and Northern Ireland on the grounds that the scheme gives rise to an inherent and unacceptable risk of illegality and because the decision breaches Section 149 of the Equality Act 2010, alternatively a declaration that a decision by the Defendant to commence the scheme in Scotland, Wales or Northern Ireland without further evaluation of its discriminatory impact would be irrational and a breach of Section 149 of the Equality Act 2010.
The following interested parties have been given leave to intervene: The Residential Landlords Association (“RLA”), the Equality and Human Rights Commission, and Liberty (formerly the National Council for Civil Liberties).
The case concerns one aspect of the “hostile environment” (or “compliant environment”) established by the Government to encourage irregular migrants to leave the UK. By the relevant sections of the Immigration Act 2014, a scheme was set up (hereinafter referred to as “the Scheme”) imposing obligations on landlords to take measures to ensure that they do not provide private accommodation to disqualified persons. The aim of the Scheme is that persons who are in the UK illegally should not be able to obtain residential tenancies from landlords. A landlord is forbidden to rent a property to a disqualified person, namely a person other than a British, EEA or Swiss national who needs but does not have leave to enter or remain in the UK. The landlord must (to ensure he avoids a civil penalty) either request, obtain, check and copy the relevant identity documents before renting the property, or instruct an agent responsible for doing those things. Sometimes, a single document will suffice such as a passport, a document giving indefinite leave to remain or a biometric residence permit. However, for prospective tenants who do not have one of those documents, there is a longer list of alternative documents, any two of which can be provided in combination including a driving licence, a letter from an employer, a benefits document and so forth. Landlords who authorise disqualified persons from abroad to rent or occupy accommodation, knowing or having reasonable cause to believe that they are disqualified, are liable to be fined and/or imprisoned unless they can demonstrate that they undertook the prescribed checks and, where necessary, informed the Home Office of the disqualified person's occupation of the premises. Where a landlord is made aware that an occupier does not have the right to rent, the landlord is required to take reasonable steps to letting which may include steps to repossess the property.
The purpose of the Scheme is to tackle and discourage illegal residence and reduce the number of tenancies available to those who are in the UK illegally, thereby easing pressure on the housing market for lawful residents as well as pressures on other public services and increasing employment opportunities for lawful residents, and to enable rogue landlords who deliberately exploit the situation of illegal immigrants to be penalised or prevented from doing so.
The nature of the challenge is that the net has been cast too wide and the effect of the Scheme has been to cause landlords to commit nationality and/or race discrimination against those who are perfectly entitled to rent with the result that they are less able to find homes than (white) British citizens. This is said to have been an unintended effect of the Scheme and that, in implementing the Scheme, landlords are acting in a way which is discriminatory on grounds of both nationality and race, not because they want to be discriminatory but because the Scheme causes them to be discriminatory as a result of market forces. This challenge has been brought because, so it is said, the Defendant Department has refused to carry out its own evaluation of the Scheme or put in place any effective system for monitoring it in the face of what is said to be compelling evidence gathered by the Claimant and other non-governmental organisations of the discriminatory effect of the Scheme. The challenge is said to be brought in the public interest to ensure that the rule of law is vindicated in an area of obviously pressing public interest.
This judgment is set out in the following sections:
A: Background and history
| Page | Paragraph | |
| A: Background and History | 5 | 8 |
| B: The Immigration Act 2014 | 8 | 13 |
| C: The Codes of Practice | 10 | 18 |
| D: Subsequent Events | 11 | 19 |
| E: The Proceedings | 16 | 35 |
| F: Declaration of Incompatibility | 16 | 36 |
| G: Ambit | 17 | 39 |
| (i) The Claimant's submissions | 18 | 42 |
| (ii) Liberty's submissions | 21 | 48 |
| (iii) The Government's submissions | 22 | 50 |
| (iv) Discussion | 25 | 60 |
| H: Causation | 29 | 70 |
| (i) The Claimant's submissions | 29 | 70 |
| (ii) The RLA's Submissions | 31 | 74 |
| (iii) The Government's submissions | 34 | 84 |
| (iv) Discussion | 37 | 93 |
| I: Government Responsibility | 39 | 97 |
| (i) The Claimant's submissions | 39 | 98 |
| (ii) The Government's submissions | 41 | 101 |
| (iii) Discussion | 42 | 105 |
| J: Justification | 44 | 107 |
| (i) The Claimant's submissions | 45 | 109 |
| (ii) The Government's submissions | 48 | 114 |
| (iii) Discussion | 51 | 121 |
| K: Discretion: Section 4 of the Human Rights Act 1998 | 52 | 125 |
| L: Declaration of Irrationality | 53 | 128 |
| M: Conclusion | 54 | 134 |
On 3 July 2013, the Home Office issued a consultation document entitled “Tackling illegal immigration in privately rented accommodation”. The then Home Secretary, Theresa May, stated in her foreword to the consultation document as follows:
“The [Immigration] Bill will make it more difficult for illegal migrants to live in the UK and ensure that legal migrants make a proper financial contribution to our key public services. It is vital that we work together across government so that our immigration policy is built into our benefits system, our health system, our housing system and other services.
This consultation seeks views on our proposals to create a new requirement on landlords to conduct immigration checks on tenants, with penalties for those who provide rented accommodation to illegal non-EEA migrants in breach of the new...
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