Immigration status and the right to rent a property

Is it discriminatory to require private sector landlords to check that tenants’ immigration status does not disqualify them from renting property?

Immigration laws introduced in 2014 and 2016 restrict access to services for people without a valid right to remain in the UK. One such restriction was the right to rent a property, with landlords expected to check the immigration status of potential tenants. Landlords failing to carry out checks could open themselves to a fine or imprisonment. The Joint Council for the Welfare of Immigrants sought to challenge these rules, arguing they were incompatible with Articles 8 and 14 of the Human Rights Act – respect for private and family life and protection from discrimination.  

Homes are a fundamental part of our private lives and have a huge impact on quality of life. Our goal is to make sure we have the foundations for a rights-respecting society. The introduction of legislation which appeared to contravene the Human Rights Act and equality legislation was a worrying development. We wanted to see the law overturned and to highlight that the government has a duty to protect human rights. We hoped that if the case succeeded, it would send a strong message to all public bodies that regulations which breach equality and human rights laws will not go unchallenged.

We used our power to intervene in this case in the Administrative Court and Court of Appeal, which is when we provide specialist advice or evidence to the court. We said that the Home Office had failed to consider the impact of its legislation on groups, protected by the Equality Act.

The case was successful in the Administrative Court, which decided that the law caused discrimination, was incompatible with human rights, and that extending the scheme to Scotland, Wales and Northern Ireland without further evaluation would breach the Equality Act.

However, the Secretary of State for the Home Department successfully appealed. Although the Court of Appeal found that the law did lead to discrimination, it said this was not unlawful because it could be justified. It decided that the laws were compatible with human rights. Because that claim was unsuccessful, it meant that the Administrative Court’s declaration of a breach of the Equality Act was overturned too.

The Court of Appeal’s judgment recognises that people do face racial discrimination as a result of the law. However, it said that if the discrimination is greater than the government envisaged, then that is a matter for the government to address. The Court of Appeal judgment may be appealed to the Supreme Court.