The ‘hostile environment’ policy was introduced in 2012 by then Home Secretary Theresa May. It combines administrative and legal measures designed to make life in the UK so difficult for irregular migrants that they are forced to leave the country. The hallmark of the policy is the empowerment of private citizens and public servants to routinely carry out immigration checks as part of many aspects of everyday life, including renting a property, applying for jobs and accessing public services.
The policy has been highly controversial and notably came under fire in 2018 with the surfacing of the Windrush scandal, which revealed that longstanding UK residents were being denied housing, healthcare and employment, and in some cases were unlawfully detained and removed from the UK.
In a recent judgment, the Court of Appeal upheld a scheme enacted as part of the policy which prohibits landlords from letting properties to immigrants without leave to remain in the UK. The scheme was held to be compatible with the European Convention on Human Rights (‘ECHR’).
The Court held that, while the scheme may result in discrimination against UK nationals who do not have a passport, especially those who do not have apparently ‘ethnically British’ attributes such as name, any such difference in treatment is justified as a proportionate means of achieving the legitimate aim of reducing irregular immigration.
SSHD -v- The Joint Council for The Welfare of Immigrants
The appeal was brought by the Secretary of State for the Home Department (‘SSHD’) against a decision of Martin Spencer J dated 1 March 2019, in a claim for judicial review brought by the Joint Council for the Welfare of Immigrants (‘the Joint Council’). The Joint Council had challenged the validity of Part 3 Chapter 1 (ss 20 – 37) of the Immigration Act 2014.
These sections introduced a scheme prohibiting landlords from renting accommodation to those who do not have leave to remain in the UK. Landlords are required to obtain documents evidencing nationality or leave to remain before permitting a prospective tenant to occupy their premises. The scheme is enforced by civil and criminal sanctions.
At first instance, Martin Spencer J held that the scheme is incompatible with Article 14 when read with Article 8 ECHR. Although he found that the scope of Article 8 was not directly engaged, he held that the scheme fell within the ‘ambit’ of Article 8 for the purposes of a discrimination claim under Article 14. Further, he held that the scheme results in unjustified discrimination on the grounds of nationality and/or race, and therefore breaches Article 14.
The Appeal:
The SSHD appealed the decision on 6 grounds:
- The judge erred in holding that the scheme fell within the ambit of Article 8 for the purposes of Article 14. (On this ground, the Joint Council cross-appealed on the basis that the judge was wrong to conclude that there was no direct interference with Article 8).
- The judge erred in finding that the scheme results in discrimination on the grounds of nationality and/or ethnicity, or alternatively in not adequately assessing such discrimination.
- The judge erred in finding that the SSHD was responsible for any discrimination.
- The judge erred in concluding that any discriminatory effects of the scheme were not justified as a proportionate means of achieving a legitimate aim.
Grounds 5 and 6 primarily concerned relief.
The SSHD’s appeal was allowed and the Joint Council’s cross-appeal was dismissed. The lead judgment was given by Hickinbottom LJ, supported by Henderson LJ. A separate but concurring judgment was given by Davies LJ.
Grounds 2 & 3: Causation
Hickinbottom LJ first addressed grounds 2 and 3 on the issue of causation. In the court below, the Joint Council had relied on data collected from ‘mystery shopping’ exercises, surveys of landlords and anecdotal evidence to prove that the scheme resulted in discrimination. Hickinbottom LJ noted that he had not found the evidence to be as compelling or consistent as Martin Spencer J had found it to be. He acknowledged that the SSHD’s criticisms of the data had some force and held that the judge went too far in his assessment of the evidence (at [76 – 79]).
However, Hickinbottom LJ did agree that the judge ‘was right to find that those who had a right to rent, but did not have British passports (or, particularly, had neither such passports nor ethnically-British attributes), were the subject of discrimination on the basis of their actual or perceived nationality; and that that discrimination was caused by the Scheme in the sense that, but for the Scheme, that level of such discrimination would not have occurred' (at [66]).
Ground 1: Ambit
Hickinbottom LJ then addressed ground 1, dealing with the ‘ambit’ of Article 8. Article 14 is not a free-standing provision and must be linked to a substantive ECHR right, in this case Article 8. To establish this link, it is sufficient for the facts of an Article 14 case to fall ‘within the ambit’ of a substantive right; a direct breach of the substantive right is not required.
On the cross-appeal, Hickinbottom LJ held that the scheme does not fall within the scope of Article 8 (at [95]), and therefore there was no direct breach of this Article. The question of whether the scheme fell within the ‘ambit’ of Article 8 for purposes of Article 14 was more difficult.
European and domestic jurisprudence has established that ‘ambit’ is a wider concept than ‘scope’ and should be widely construed (at [100]). Strasbourg authorities have held that the ambit of a substantive article is engaged where there is a 'more than tenuous link' between a measure and the core values protected by that article (at [104]). Applying this test, Hickinbottom LJ was willing to proceed on the assumption that the case fell within the ambit of Article 8 for the purposes of Art 14.
However, Hickinbottom LJ noted that housing cases have not followed a clear or consistent approach to the ambit of Article 8 in this context. He explained that he reached no firm conclusion on ambit in light of his conclusions on the issue of justification (discussed below) and commented that this issue is best left to be considered in a case where it is determinative (at [110]).
Ground 4: Justification for interference
Hickinbottom LJ found the issue of justification, addressed under ground 4, to be the ‘vital question’ in this case (at [112]). He reviewed the 4-stage test for justification set out in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 and noted that only the 4th limb, namely the balancing test, was in issue (at [114]).
Hickinbottom LJ agreed with the submission of the SSHD that a general challenge to the validity of a legislative measure should be distinguished from a challenge to the operation of that measure in individual cases (at [116]), and upon reviewing the case law, concluded that the relevant test in the former circumstance is that legislation will not be unjustified or unlawful ‘unless it is incapable of being operated in a proportionate way in all or nearly all cases’ (at [117 – 118]). He held that the scheme is capable of being operated proportionately in most, and perhaps all, individual cases (at [119]).
He further concluded that any discrimination arising from the scheme is justified, as a proportionate balance has been struck between the public interest and the interests of individuals for a number of reasons, including:
- The scheme derives from an Act of Parliament implementing a socio-economic policy, and therefore considerable deference must be afforded to Parliament's assessment of whether the adverse effects for individuals are outweighed by the public benefit (at [143]).
- The legitimate aim of the scheme is to reduce irregular immigration and to encourage irregular immigrants to regularise their status by obtaining leave to remain. On the evidence available the Scheme has made more than an insignificant contribution to that aim (at [146]).
- The scheme itself does not intend, encourage or directly create discrimination. Any discrimination is entirely coincidental as a result of the checks required by its implementation (at 148 i)]).
- The discrimination arises out of the implementation of the scheme by private citizens, as landlords are not agents of the State (at [148 ii)])
- There is little evidence of discrimination that has in fact taken place (at [150]). The data showed that most landlords comply with the administrative requirements without discriminating.
Comment
This judgment reaffirms the high bar to be met when bringing a general challenge to the validity of a measure under the ECHR, especially where that measure concerns elements of social or economic policy.
It is notable that the Court did acknowledge that discrimination on the basis of nationality (or perceived nationality) in the rental market does take place, and that the continued application of the scheme may make it more difficult for some prospective tenants, including UK nationals who do not have a passport, to obtain accommodation. However, this was insufficient to displace the high degree of deference given to Parliament’s assessment of the public interest.
This may not be the end of the matter, as the Joint Council maintain their stance that the scheme is unlawful and have already expressed an intention to appeal to the Supreme Court.
Georgia Beatty is a barrister practising in all areas of criminal law. She both defends and prosecutes in a wide range of criminal cases.
In addition to her criminal practice, Georgia has a growing practice in extradition law and has been instructed in both Part 1 and Part 2 cases. She also accepts instructions in family proceedings.
