The Secretary of State for the Home Department v R the Joint Council for the Welfare of Immigrants

JurisdictionEngland & Wales
JudgeLord Justice Hickinbottom,Lord Justice Henderson,Lord Justice Davis
Judgment Date21 April 2020
Neutral Citation[2020] EWCA Civ 542
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C4/2019/0660
Date21 April 2020
Between:
The Secretary of State for the Home Department
Appellant
and
The Queen on the Application of the Joint Council for the Welfare of Immigrants
Respondent

and

(1) The National Residential Landlords Association
(2) The Equality and Human Rights Commission
(3) The National Council for Civil Liberties
Interveners

[2020] EWCA Civ 542

Before:

Lord Justice Davis

Lord Justice Henderson

and

Lord Justice Hickinbottom

Case No: C4/2019/0660

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

THE HON MR JUSTICE MARTIN SPENCER

[2019] EWHC 452 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Sir James Eadie QC, David Pievsky QC and David Lowe (instructed by Government Legal Department) for the Appellant

Phillippa Kaufmann QC and Jamie Burton (instructed by Leigh Day) for the Respondent

Justin Bates and Brooke Lyne (instructed by Anthony Gold Solicitors) for the First Intervener

Nick Armstrong (instructed by The Equality and Human Rights Commission) for the Second Intervener

Martin Westgate QC, James Kirk and Daniel Clarke (instructed by Liberty) for the Third Intervener

Hearing dates: 15–17 January 2020

Further written submissions: 4 February 2020

Approved Judgment

Lord Justice Hickinbottom

Introduction

1

It is in the public interest that a coherent immigration policy should not only set out the criteria upon which leave to enter and remain in a particular state will be granted, but also discourage the unlawful entry to, or continued presence in, that state of those who have no right to enter or be there.

2

As well as potentially exploiting the individuals who wish to enter and remain in that state but have no right to do so, those who, for their own financial gain, facilitate such unlawful entry or continued presence act contrary to that public interest. Consequently, EU Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence requires Member States to adopt sanctions against “any person who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens” which are “effective, proportionate and dissuasive” (articles 1 and 3).

3

Part 3 Chapter 1 (i.e. sections 20–37) of the Immigration Act 2014 (“the 2014 Act”) (“the Scheme”), which currently only applies to England, builds on earlier provisions providing for criminal sanctions for anyone who facilitated the commission of a breach of immigration law by a non-European Union citizen. It prohibits landlords in the private rental sector – of whom there an estimated two million in the UK – from letting their properties to those who are not British, EEA or Swiss citizens and who (i) require but do not have leave to enter or remain in the United Kingdom or (ii) have such leave but only upon condition that prevents them from occupying such premises (collectively, “irregular immigrants”). This is one of a battery of provisions designed to encourage those who are resident in the UK to regularise their immigration status or leave the country, which include restrictions on employment, using NHS facilities, and obtaining bank accounts, driving licences etc. These are generally known as the “compliant environment” or, more usually, “hostile environment” provisions.

4

The Joint Council for the Welfare of Immigrants (“the Joint Council”), an independent charity, is a particular advocate for fairness, equality and proper respect for human dignity for immigrants. On 8 February 2018, it issued judicial review proceedings against the Secretary of State challenging the lawfulness of the Scheme, on the basis that its provisions are incompatible with article 14 when read with article 8 of the European Convention on Human Rights (“the ECHR”). It is important to note the nature of the challenge. It was not brought by any individual claiming that he or she has been the victim of discrimination as a result of the operation of the Scheme: rather, it was a challenge to the validity of the statutory provisions themselves. Furthermore, the challenge was not in respect of any adverse effect of the Scheme upon those towards whom it was directed (i.e. irregular immigrants whose right to rent was deliberately curtailed by the Scheme), but the alleged unintended but (it is said) inevitable discriminatory consequences for certain categories of those with a right of abode or leave to enter/remain and thus a right to rent, namely those without British passports and especially those without British passports and without ethnically British attributes such as name.

5

After a four-day hearing, on 1 March 2019, in a commendably thorough judgment, Martin Spencer J allowed the judicial review; and made declarations that (i) the Scheme is incompatible with article 14 read with article 8 of the ECHR, and (ii) a decision to commence the Scheme in Scotland, Wales and Northern Ireland without further evaluation of its efficacy and discriminatory effect would be irrational and a breach of the public sector equality duty in section 149 of the Equality Act 2010 (“the PSED”). The Secretary of State now appeals that order.

6

Before us, Sir James Eadie QC with David Pievsky and David Lowe appeared for the Secretary of State, and Phillippa Kaufmann QC with Jamie Burton appeared for the Joint Council. There are three interveners.

i) Justin Bates and Brooke Lyne appeared for the National Residential Landlords Association (“the NRLA”). The NRLA is an organisation which represents the interests of residential landlords, formed on 1 January 2020 as the result of a merger of the Residential Landlords Association (“the RLA”) and the National Landlords Association. The RLA intervened before the court below. At the time of merger, the RLA had 30,000 members and associate members with a combined portfolio of about 300,000 properties. The NRLA has about 80,000 members.

ii) Nick Armstrong appeared for the Equality and Human Rights Commission (“the Commission”). The Commission is an independent non-departmental government body, established by the Equality Act 2006, dedicated to promoting and upholding equality and human rights across Great Britain.

iii) Martin Westgate QC with James Kirk and Daniel Clarke appeared for the National Council of Civil Liberties (“Liberty”). Liberty is an independent membership organisation dedicated to, amongst other things, campaigning for fair and equal treatment.

As the outset, I thank all Counsel, and their supporting teams, for their substantial assistance.

The Scheme: Sections 20–37 of the Immigration Act 2014

7

As I have already indicated, sections 20–37 of the 2014 Act were not the first provisions to impose sanctions upon those who facilitated illegal immigrants residing in the UK. By section 25 of the Immigration Act 1971 (“the 1971 Act”) in its original form, it was an offence punishable by a fine and/or up to six months' imprisonment for someone knowingly to harbour anyone whom he knew or had reasonable cause to believe was an illegal immigrant. By section 143 of the Nationality, Immigration and Asylum Act 2002, section 25 of the 1971 Act was replaced by a new provision under which it was a criminal offence to do an act which facilitated the commission of a breach of immigration law by an individual who was not a citizen of the EU knowing or having reasonable cause for believing (i) that the act facilitates the commission of a breach of immigration law by that individual and (ii) that the individual was not a citizen of the EU. In parallel with these provisions, Part VI of the Immigration and Asylum Act 1999 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002 restricted welfare support, including housing benefit, for irregular immigrants.

8

No doubt partly as a result of these provisions, and also natural commercial caution, responses to the consultation held as part of the Impact Assessment of the proposed new provisions which became sections 20–37 of the 2014 Act suggested that 70% of landlords understandably already carried out and recorded identity document checks on those to whom they rented property (page 12), and about 40% checked a passport (page 9).

9

The 2014 Act provided for a new scheme, designed to prevent irregular immigrants from being able to rent accommodation on the open market, in which landlords are tasked with checking that their tenants are not irregular immigrants.

10

The Scheme applies to “residential tenancy agreements” (“RTAs”) which, by section 20, includes all arrangements where a person is permitted to occupy a property as their only or main residence in return for the payment of rent, unless the arrangement falls into one of the exclusions set out in Schedule 3 (none of which is relevant to this appeal).

11

Section 21 defines the category of persons disqualified from occupying premises under an RTA because of their immigration status, as follows (so far as relevant to this appeal):

“(1) For the purposes of this Chapter a person (“P”) is disqualified as a result of their immigration status from occupying premises under [an RTA] if –

(a) P is not a relevant national, and

(b) P does not have a right to rent in relation to the premises.

(2) P does not have a ‘right to rent’ in relation to premises if –

(a) P requires leave to enter or remain in the United Kingdom but does not have it, or

(b) P's leave to enter or remain in the United Kingdom is subject to a condition preventing P from occupying the premises.

(3) But P is to be treated as having a right to rent in relation to premises (in spite of subsection (2)) if the Secretary of State has granted P permission for the purposes of this Chapter to occupy premises under [an RTA].

(4) …

(5) In this section ‘relevant...

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