A NEW CHALLENGE against the UK’s Right to Rent legislation has been taken to the European Court of Human Rights. The legislation has been a key plank of the government’s ‘Hostile Environment’, which has been found to cause racial discrimination by two court rulings.

The application for a hearing about the Right to Rent scheme comes as a new Wendy Williams Windrush report calls on the Home Office to urgently complete its review of the Hostile Environment, which she says had a “devastating impact on the Windrush generation”.

The challenge is being made on behalf of a Black US citizen who has Indefinite Leave to Remain and has lived in the UK for 18 years. She argues she has suffered discrimination and homelessness because of the scheme.

She is represented by law firm, Leigh Day, and her case is supported by the Joint Council for Welfare of Immigrants (JCWI) whose challenge to the scheme at the High Court in 2019 halted its roll out beyond England. However, after the Court of Appeal overturned this decision, they were refused permission to appeal to the Supreme Court last year.

The scheme makes private landlords de facto immigration officers by requiring them to undertake immigration checks on potential tenants. Landlords who rent to disqualified people are handed out serious sanctions under the scheme.

In 2019 the High Court ruled that the scheme was incompatible with Articles 8 and 14 of the European Convention on Human Rights (ECHR) because the policy caused landlords to commit race discrimination against potential tenants who were perfectly entitled to rent. The High Court found that the Government had not “come close” to justifying the scheme and the discriminatory effects it caused.

In 2020 the Court of Appeal ruled that the policy did cause some landlords to discriminate against potential tenants on the grounds of their race and nationality, but that this discrimination was justified.

Now, without recourse to be heard in the Supreme Court, Leigh Day has asked the European Court of Human Rights to consider the policy, arguing that the discrimination is not justified.

The applicant, who wishes to remain anonymous, says she has experienced discrimination by various landlords following the implementation of the right to rent scheme, causing her to become homeless for weeks at a time. She claims she will be at risk of being affected by similar discrimination in any future attempts to obtain a tenancy.

The applicant is not a victim of the Windrush scandal. However, her lawyers believe that the concerns outlined by Wendy Williams in her latest report add weight to the merit of her request for a hearing at the European Court of Human Rights because they highlight the discrimination suffered by ethnic minority groups like the Windrush generation as a result of Hostile Environment policies like the Right to Rent Scheme, and the need for the Government to properly consider the effectiveness of such schemes.

The applicant argues:

  • As the difference in treatment caused by the Scheme relates to race and nationality, the UK is required to demonstrate very weighty reasons to justify the discrimination.
  • Given the extent of the discrimination, and the very limited evidence that it is effective in achieving the aim of encouraging compliance with immigration law, it is plainly not justified and the Court of Appeal was wrong in law to come to this conclusion.
  • Since the Scheme causes discrimination on the grounds of nationality and race, and is not justified, it violates the applicant’s rights under Article 14.

Her position is supported by broader international law sources, including the International Convention on the Elimination of All Forms of Racial Discrimination (A2(1), A5(e)(iii)), the International Covenant on Economic, Social and Cultural Rights and the Revised European Social Charter (A2, A11(1)) and the Revised European Social Charter (Part I, para 31; Part II, A31; and Part V, Article E).

JCWI policy and advocacy manager, Zoe Gardner said: “People should never have been pushed into dangerous homes or housing limbo because of the colour of their skin, or their nationality. But that’s effectively what this government’s Right to Rent scheme has done. We already have two court rulings confirming that the scheme causes racial discrimination against tenants, including the Windrush generation. And now, we have another powerful challenge against this dangerous and discriminatory legislation. We now hope the Court at Strasbourg sees sense and rules against a scheme which denies black and brown people fair access to safe, decent homes.”

Leigh Day solicitor John Crowley said: “Whilst we are disappointed that the Supreme Court turned down the opportunity to hear this very important case, my client is determined to put a stop to this discriminatory policy which casts a shadow on the lives of ethnic minorities who have a right to live and rent in this country. We now take the challenge to Strasbourg and hope the Court will agree with our analysis: a Scheme which causes race and nationality discrimination by design has no place in our society.”

Counsel instructed on the case are Jamie Burton QC, Phillippa Kaufmann QC and Daniel Clarke.

* Download the International Convention on the Elimination of All Forms of Racial Discrimination here.

* More about Wendy Williams here.

* Source: Leigh Day