Introduction

The case of The Secretary of State for the Home Department v. R (on the application of) Joint Council for The Welfare of Immigrants ([2020] EWCA Civ 542) addressed the legality of the "Right to Rent" Scheme under the Immigration Act 2014. The Joint Council, an advocacy group for immigrant welfare, challenged the Scheme's compatibility with the European Convention on Human Rights (ECHR), specifically Articles 8 and 14. The central issue revolved around whether the Scheme inherently led to indirect discrimination against non-British and non-European Economic Area (EEA) immigrants.

The case proceeded through judicial review, initially succeeded by Martin Spencer J, who declared the Scheme incompatible with ECHR provisions. The Secretary of State appealed this decision, leading to a comprehensive examination by the Court of Appeal.

Summary of the Judgment

The Court of Appeal ultimately allowed the Secretary of State's appeal, dismissing the Joint Council's cross-appeal. The key findings included:

• The judgment upheld that the Scheme did not fall within the direct scope of Article 8 of the ECHR, which concerns the right to respect for private and family life.
• Even if considering Article 14 (prohibition of discrimination) in conjunction with Article 8, the Scheme was deemed proportionate and justified in pursuing its legitimate aim of controlling immigration.
• The Court criticized the initial judgment for overestimating the level and impact of discrimination caused by the Scheme.
• It was concluded that while some landlords did engage in discriminatory practices, these were not inherently caused by the Scheme but rather by individual non-compliance.

Analysis

Precedents Cited

The judgment extensively referenced both domestic and European precedents to assess the Scheme's legality:

• Bank Mellat v HM Treasury: Established a four-question test for justification under ECHR, focusing on the importance of the measure, its rational connection to the objective, the availability of less intrusive measures, and the proportionality between the measure's impact and its benefits.
• Christian Institute v Lord Advocate: Highlighted the challenges courts face in determining the "ambit" of ECHR articles.
• Stec v United Kingdom: Emphasized that Article 14 complements substantive ECHR rights and does not exist independently.
• In re McLaughlin and R (DA) v Secretary of State for Work and Pensions: Discussed the application of the "manifestly without reasonable foundation" test in justification.

Legal Reasoning

The Court assessed whether the Scheme's implementation led to direct or indirect discrimination as prohibited by ECHR Articles 8 and 14. While acknowledging evidence that some landlords engaged in discriminatory practices, the Court determined:

• The Scheme itself does not mandate discrimination; rather, it imposes obligations on landlords to verify tenants' immigration status.
• Discriminatory actions by landlords were deemed individual failures to comply with the Scheme's requirements, not systemic issues inherent to the Scheme.
• The legitimate aim of controlling immigration was recognized as sufficient to justify the Scheme, provided the measures were proportionate and did not result in undue discrimination.
• The Court emphasized the "margin of appreciation" afforded to the legislature in socio-economic policy matters, limiting judicial interference unless a measure is "manifestly without reasonable foundation."

Impact

This judgment has significant implications for immigration law and anti-discrimination practices:

• Affirms the government's discretion in designing immigration control measures, provided they align with proportionality and non-discrimination principles.
• Clarifies the boundaries of judicial review concerning socio-economic policies, reinforcing deference to legislative intent.
• Reiterates the necessity for landlords and other parties to comply with anti-discrimination laws actively.
• Potentially limits future challenges to similar schemes unless they can demonstrate a clear lack of proportionality or inherent discrimination.

Complex Concepts Simplified

Ambit of ECHR Articles

The "ambit" of an ECHR article refers to the scope within which positive or negative obligations under that article apply. In this case, determining whether the Scheme falls within the ambit of Article 8 required assessing the connection between the Scheme's measures and individuals' rights to private and family life.

Manifestly Without Reasonable Foundation

This legal test assesses whether a government's measure is so unreasonable that it cannot be justified, even if it pursues a legitimate aim. The Court determined that the Right to Rent Scheme was not "manifestly without reasonable foundation," as it effectively serves its immigration control objectives without producing excessive discrimination.

Conclusion

The Court of Appeal's decision to uphold the Right to Rent Scheme underscores the balance between effective immigration control and the protection of individual rights against discrimination. While recognizing that some landlords may still engage in discriminatory practices, the judgment establishes that the Scheme itself is legally sound, justified, and proportionate. This sets a precedent for the implementation of similar policies, emphasizing the need for clarity in legislative intent and robust compliance mechanisms to prevent unlawful discrimination.

Stakeholders must continue to monitor and ensure adherence to both immigration and anti-discrimination laws to foster a fair rental market. Additionally, this case highlights the judiciary's role in deferring to legislative expertise in socio-economic matters, provided that such legislation meets fundamental human rights standards.