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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Joint Council for the Welfare of Immigrants, R (On the Application Of) v Secretary of State for the Home Department  EWHC 452 (Admin) (01 March 2019)
Cite as:  HLR 35,  EWHC 452 (Admin),  WLR(D) 149,  4 All ER 527
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (Joint Council for the Welfare of Immigrants)
|- and -
|Secretary of State for the Home Department
- and –
|(1) Residential Landlords Association
(2) Equality and Human Rights Commission
for the Claimant
Mr David Pievsky and Mr David Lowe (instructed by Government Legal Department)
for the Defendant
Mr Justin Bates and Ms Brooke Lyne (instructed by Anthony Gold Solicitors)
for Residential Landlords Association
Mr Nick Armstrong for Equality and Human Rights Commission,
by written submissions only
Mr Martin Westgate QC and Mr James Kirk and Mr Daniel Clarke (instructed by Liberty)
for the Intervenors
Hearing dates: 18, 19, 20 and 21 December 2018
Crown Copyright ©
Mr Justice Martin Spencer:
"Discrimination is an insidious practice. Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced. Of course all law, civil and criminal, has to draw distinctions. One type of conduct, or one factual situation, attracts one legal consequence, another type of conduct or situation attracts a different legal consequence. To be acceptable these distinctions should have a rational and fair basis. Like cases should be treated alike, unlike cases should not be treated alike. The circumstances which justify two cases being regarded as unlike, and therefore requiring or susceptible of different treatment, are infinite. In many circumstances opinions can differ on whether a suggested ground of distinction justifies a difference in legal treatment. But there are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment. Differences of race or sex or religion are obvious examples. Sexual orientation is another. This has been clearly recognised by the European Court of Human Rights: see, for instance, Fretté v France  2 FLR 9, 23, para 32. Unless some good reason can be shown, differences such as these do not justify differences in treatment. Unless good reason exists, differences in legal treatment based on grounds such as these are properly stigmatised as discriminatory."
For legislation to be castigated as discriminatory is therefore a serious accusation, and is to be treated seriously by any court before which such an accusation is made.
Paragraph A: Background and History 8 B: The Immigration Act 2014 13 C: The Codes of Practice 18 D: Subsequent Events 19 E: The Proceedings 35 F: Declaration of Incompatibility 36 G: Ambit 39 (i) The Claimant's submissions 42 (iii) Liberty's submissions 48 (iiii) The Government's submissions 50 (iv) Discussion 60 H: Causation 70 (i) The Claimant's submissions 70 (ii) The RLA's Submissions 74 (iii) The Government's submissions 84 (iv) Discussion 93 I: Government Responsibility 97 (i) The Claimant's submissions 98 (ii) The Government's submissions 101 (iii) Discussion 105 J: Justification 107 (i) The Claimant's submissions 109 (ii) The Government's submissions 114 (iii) Discussion 121 K: Discretion: Section 4 of the Human Rights Act 1998 125 L: Declaration of Irrationality 128 M: Conclusion 134
A: Background and history
"The [Immigration] Bill will make it more difficult for illegal migrants to live in the UK and ensure that legal migrants make a proper financial contribution to our key public services. It is vital that we work together across government so that our immigration policy is built into our benefits system, our health system, our housing system and other services.
This consultation seeks views on our proposals to create a new requirement on landlords to conduct immigration checks on tenants, with penalties for those who provide rented accommodation to illegal non-EEA migrants in breach of the new requirements."
"JCWI's main concern is that these proposals are very likely to lead to racial profiling and discrimination against BME [Black and Minority Ethnicity] prospective tenants. … [The proposed immigration status checks] will serve to encourage indirect discrimination and in many cases direct discrimination. It will be far easier for a landlord to let his or her property to a British/EU national who will simply have to produce their passport to confirm status. The consultation itself quotes the Department for Communities and Local Government study that indicates more than half of those in private rented accommodation are non-British or Irish residents and that most new migrants are housed in the private rental sector. Thus, migrants will be disproportionately affected by these proposals.
Landlords fearful of breaking the law or facing a fine will find it far easier to avoid renting to anybody who could have a complicated immigration history or anybody whose status is not immediately clear. This will undoubtedly result in BME individuals losing out on tenancies and increasing their chances of being made homeless."
The consultation gave a clear message that discrimination against foreign born tenants is unacceptable. Particular concern was raised that the regulations would result in discrimination motivated not because of overt prejudice but because of administrative convenience where some people are more likely than others to have readily available documentation. The Government is equally concerned to address the risk that the new checking duty will result in unlawful discrimination."
This risk was said to be addressed by the provision of a statutory non-discrimination code "providing clear guidance on the steps landlords must follow to avoid unlawful discrimination, which may be taken into account by tribunals considering claims of unlawful discrimination." The Department also said that it would put into place administrative support and guidance for landlords.
"96. … while there is no right under Article 8 ECHR to be provided with housing (Chapman v UK  33 EHRR 18), the prohibition will prevent individuals from accessing the private rented sector in order to rent their only or main residence, and will further prevent individuals from living together at privately rented premises as their only or main residence where one of them is disqualified from occupation by reason of their immigration status. It therefore has the potential to impact on an individual's right to respect for his home, private and family life.
97. In relation to respect for an individual's home there will be no obligation on a landlord to evict an individual once in occupation. While an individual who is disqualified will not be able to establish a home in the private rented sector, if he has taken up residence at a time when he was lawfully present in the United Kingdom, the restriction will not result in the loss of a home once established."
(I interpose to comment that this has now changed as a result of the changes in the Scheme introduced by the Immigration Act 2016 which does impose an obligation on a landlord to take reasonable steps to end the letting including in some cases evicting an individual once in occupation, thus arguably strengthening the engagement with Article 8.) The memorandum then continues:
"98. The restriction on establishing a residence in the private rented sector as one's only or main residence prevents the individual living his own personal life as he chooses and potentially prevents him from living with members of his family and in that respect engages his right to respect for private and family life. However, the restriction can be justified on the basis that it is both necessary and proportionate in pursuit of the legitimate aim of immigration control. …
99. The restriction will also impact on the right to respect for family life enjoyed by both the individuals themselves, and also British citizens, EEA nationals and those with an unlimited right to reside in the United Kingdom who will be prevented from arranging accommodation for themselves and any adult family member who is disqualified from occupation. This engages Article 8 and arguably Article 14. In relation to Article 8, the restriction can be said to be justified and proportionate for the reasons stated above. In relation to Article 14, the margin of appreciation is relatively wide given the differential treatment is based on immigration status, which involves an element of choice and the socio-economic nature of the subject matter (see Bah v UK  54 EHRR 21 paragraph 47). The restrictions here are therefore justified for the reasons set out above.
100. The Department is therefore satisfied that these provisions are compatible with Articles 8 and 14."
The acknowledgement by the Department in the memorandum that Article 8 is engaged is important for present purposes because it is the Defendant's case that not only do the facts of this case not engage Article 8 but do not even come within the ambit of Article 8.
"The new rules might lead landlords to discriminate against people who they perceive to be foreign rather than conduct proper checks to ascertain their actual status."
In answer, the Department stated:
"The level of checks required are de minimis - usually to the extent of copying one document with no need for further action. The Home Office will make regulations specifying the document types that must be checked and copied, and the document list has been constructed so that it reflects existing checking best practise by landlords and encompasses documents which are commonly held by the vast majority of those entitled to live in the UK. A Code of Practice will provide guidance in assisting landlords to conduct such checks without breaching equality legislation. The need to treat all tenants equally will be reinforced in guidance and tools provided for landlords. …
Respondents to the consultation raised concerns that [non-EEA migrants who are not settled here] may suffer administrative discrimination, where landlords may consider that conducting more complex checks will prove more burdensome. The Government recognises that extra support may be required in some circumstances to ensure that legitimate visitors and legal migrants are not barred from the housing market (for example, the Home Office is committed to providing a service that will deal with general telephone enquiries asking for advice and allow landlords to request swift confirmation of a person's status).
Where migrants with outstanding applications or appeals know that they need to undergo a landlord check in advance, the Home Office will provide a pre-certification service for these migrants, enabling them to obtain the documentation they need upfront. The Home Office also intends to amend the immigration application process to allow applicants to retain their biometric residence permit when making an immigration application. This will allow the migrant to show evidence of their identity, nationality and immigration status to a landlord [and] enable the landlord to carry out a speedy and accurate check with the Home Office on the person's current status."
Thus, whilst recognising that the proposed legislation potentially engaged Articles 8 and 14 ECHR, and alive to the risk that the Scheme would cause unlawful discrimination, the Government proceeded to enact the legislation through Parliament.
B: The Immigration Act 2014 ("IA 2014")
"(1) For the purposes of this Chapter a person ("P") is disqualified as a result of their immigration status from occupying premises under a [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 …
(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 a [RTA].
(5) In this section 'relevant national' means –
(a) A British citizen
(b) A national of an EEA state other than the United Kingdom or
(c) A national of Switzerland."
(1) A landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.
(2) A landlord is taken to "authorise" an adult to occupy premises in the circumstances mentioned in subsection (1) if (and only if) there is a contravention of this section.
(3) There is a contravention of this section in either of the following cases.
(4) The first case is where a [RTA] is entered into that, at the time of entry, grants a right to occupy premises to –
(a) A tenant who is disqualified as a result of their immigration status,
(b) Another adult named in the agreement who is disqualified as a result of their immigration status,
(c) Another adult not named in the agreement who is disqualified as a result of their immigration status (subject to subsection (6)).
(6) There is a contravention as a result of subsection (4) (c) only if –
(a) reasonable enquiries were not made of the tenant before entering into the agreement as to the relevant occupiers, or
(b) reasonable enquiries were so made and it was or should have been apparent from the enquiries that the adult in question was likely to be a relevant occupier."
"(1) The landlord under a [RTA] relating to premises in England may terminate the agreement in accordance with this section if the condition in subsection (2) is met.
(2) The condition is that the Secretary of State has given one or more notices in writing to the landlord which, taken together, -
(a) Identify the occupier of the premises or (if there is more than one occupier) all of them, and
(b) state that the occupier or occupiers are disqualified as a result of their immigration status from occupying premises under a [RTA]."
C: The Codes of Practice
"How to avoid race discrimination
As a matter of good practice landlords and their agents should apply the right to rent checks in a fair, justifiable and consistent manner regardless as to whether they believe the prospective tenant to be British, settled or a person with limited permission to be here. Landlords should ensure that no prospective tenants are discouraged or excluded, either directly or indirectly, because of their personal appearance or accent or anything else associated with a person's race. They should not make and act upon assumptions about a person's immigration status on the basis of their colour, nationality, ethnic or national origins, accent, ability to speak English or the length of time they have been resident in the UK. The best way for landlords to ensure that they do not discriminate is to treat all prospective tenants fairly and in the same way, making sure their criteria and practises in this regard are appropriate and necessary.
Prospective tenants should not be treated less favourably if they produce acceptable documents showing a time-limited right to stay in the UK. Once a person who has time-limited permission to stay in the UK has established their initial and ongoing entitlement to stay, they should not be treated less favourably than others even if further right to rent checks are subsequently required, as prescribed by the Scheme and set out in the code of practice. Neither should a landlord treat less favourably a prospective tenant who has the required combination of documents showing their right to rent (for example a driving licence with a long UK birth certificate) but does not have a passport. There should be no need to ask questions about a prospective tenant's immigration status where it is clear that they have permission to stay here. Any subsequent further checks need only establish that the tenant is still here with permission. If a person is not able to produce acceptable documents a landlord should not assume that they are living in the UK illegally. Subject to business requirements, landlords should try to keep the offer of accommodation open in order to provide a prospective tenant the opportunity to produce documents that will demonstrate their right to rent, but they are not obliged to do so."
These codes of practice are referred to in the statement of Parvaiz Asmat served on behalf of the Defendant.
D: Subsequent Events
"The evaluation found no hard evidence of systematic discrimination towards foreign nationals from letting agents or landlords, or that their access to the housing market was restricted as a result of the Scheme. At an overall level there did not appear to be major differences for White British and BME shoppers in accessing accommodation between the phase 1 location and the comparator area. There was evidence of differences at particular stages of the process of renting a property, although these were not necessarily indicative of discrimination against BME shoppers. A very small number of potentially discriminatory attitudes were reported. Whilst the evaluation did not find hard evidence of systematic discrimination, the government will continue to provide clear guidance on how to avoid acting in this manner … any landlord who discriminates is acting unlawfully and liable to prosecution."
"In terms of Article 14, the Department once again considers that a similar analysis applies: for the reasons summarised above it is also satisfied that the differential treatment serves the legitimate aim of immigration control and is proportionate to the aims being pursued, given the wide margin of appreciation available in cases where differential treatment is based on immigration status."
The Claimant's Mystery Shopper Exercises
i) Peter: British citizen, ethnically British name, British passport;
ii) Harinder: British citizen, non-ethnically British name, British passport;
iii) Ramesh: non-British citizen, non-ethnically British name, indefinite leave to remain (settled status) and an unlimited 'Right to Rent' demonstrated through one document;
iv) Colin: British citizen, ethnically British name, no passport but unlimited 'Right to Rent' that could be demonstrated through two documents;
v) Parimal: British citizen, non-ethnically British name, no passport but unlimited 'Right to Rent' that could be demonstrated through two documents;
vi) Mukesh: non-British citizen, non-ethnically British name, limited leave to remain in the UK (2 years) demonstrated through one document.
Landlords were sent a combination of three out of a possible six adverts and the results were compared. Statistically significant results were obtained that, for example, (i) Landlords would discriminate against Ramesh in favour of Peter/Harinder (but not against Harinder in favour of Peter), thus supporting the suggestion that the legislation has the effect of causing discrimination on the ground of nationality; and (ii) Landlords would discriminate against Parimal in favour of Colin, thus supporting the suggestion that the legislation has the effect of causing racial discrimination where the housing applicants are British citizens without a passport. See further paragraph 32 below.
"1. The evidence strongly supported the hypothesis that the prospective tenant who was not British but had indefinite leave to remain in the UK was more likely to receive a negative response or no response compared to a British citizen;
2. Where both prospective tenants had a British passport, there was no evidence of discrimination between the BME and 'White British' shoppers;
3. A 'White British' tenant without a passport was more likely to receive a negative response or no response than a 'White British' tenant with a passport;
4. A BME British tenant without a passport was more likely to receive negative response or no response than a BME tenant who could provide a British passport;
5. There was not enough statistical significance in the evidence to support the hypothesis that where both White and BME British citizens do not have passports, the BME tenant faces discrimination on grounds of ethnicity."
1. The results did not show any significant finding that the white British tenant without a passport was more likely to receive a negative response or no response than the white British tenant with a passport;
2. The evidence showed that the BME tenant without a passport was more likely to receive a negative response or no response than the BME tenant with a passport;
3. There was no evidence of racial discrimination between the BME and white British shoppers when they both had a British passport;
4. There was evidence that when white and BME British citizens did not have a passport the BME tenant faced race discrimination.
E: The proceedings
i) A declaration pursuant to s.4 Human Rights Act 1998 that sections 20-37 IA 2014 (i.e. the Scheme) are incompatible with Articles 8 and 14 ECHR; and
ii) An order:
a) Quashing the Defendant's decision to extend the Scheme to the rest of the UK on the grounds that the Scheme gives rise to an inherent and unacceptable risk of illegality and because the decision breached s.149 Equality Act 2010 (the public-sector equality duty), alternatively
b) Declaring that a decision by the Defendant to commence the Scheme in the rest of the UK without further evaluation of its discriminatory impact would be irrational and a breach of s.149 Equality Act 2010.
F: Declaration of Incompatibility
i) The case falls within the "ambit" of article 8 ECHR;
ii) The Scheme is in fact discriminatory on racial grounds (and, to be inferred, grounds of nationality);
iii) The discrimination cannot be justified; and
iv) A declaration under s. 4 of the Human Rights Act is appropriate as a remedy to be granted by the court in its discretion.
i) First, the Scheme neither engages, nor comes within the ambit of, Article 8.
ii) Secondly, the Scheme is not prima facie discriminatory on grounds of race, the Defendant disputing that wherever there is a disparate impact in some area of life, discrimination for which the state is responsible may be inferred.
iii) Thirdly, the Scheme is justified. Thus, it is asserted that the Scheme had been implemented in pursuit of a legitimate objective, namely immigration control, and represents Parliament's considered choice on measures of social policy and strategy, namely to reduce unlawful immigration. As such the legislative policy is to be accorded due respect by the Court and the Scheme represents a proportionate means of achieving a legitimate aim.
iv) Fourthly, a declaration should be refused: even if it could be established that the Scheme causes unjustified discrimination (which is denied), it does not follow that the legislation is incompatible with Articles 8 and 14 ECHR. It is necessary to consider what the legislation requires and truly means, and even if some unintentional discrimination is caused, the relief sought is too broad and far-reaching.
"1. Everyone has the right to "respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the provision of the rights and freedoms of others."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"Unlike article 1 of the 12th Protocol, article 14 of the Convention does not confer a free-standing right of non-discrimination. It does not confer a right of non-discrimination in respect of all laws. Article 14 is more limited in its scope. It precludes discrimination in the "enjoyment of the rights and freedoms set forth in this Convention". The court at Strasbourg has said this means that, for article 14 to be applicable, the facts at issue must "fall within the ambit" of one or more of the Convention rights. Article 14 comes into play whenever the subject matter of the disadvantage "constitutes one of the modalities" of the exercise of a right guaranteed or whenever the measures complained of are "linked" to the exercise of a right guaranteed: Petrovic v Austria (1998) 33 EHRR 307, 318, 319, paras 22, 28."
See also paragraph 35 of the judgment of the ECtHR in Bah v United Kingdom (2012) 54 EHRR 21, cited below in this judgment at paragraph 46.iii).
(i) The Claimant's submissions
"It is important to recall that Article 8 does not in terms recognise a right to be provided with a home. Nor does the jurisprudence of the Court acknowledge such a right…"
It was therefore submitted:
"103. Even though there is no right to a home, these facts plainly fall within the ambit of the right to respect for private and family life, and to the home. Article  is therefore engaged."
"105. The application of article 14 does not presuppose a violation of one of the substantive rights guaranteed by the Convention. It is necessary but also sufficient for the facts of the case to fall within the ambit of one or more of the Convention articles. They will so fall whenever the subject matter of the disadvantage is a "positive modality" of the exercise of a right guaranteed or whenever the measures complained of are "linked" to the exercise of a right guaranteed.
106. It is not necessary for there to be even an interference with a substantive right in order to establish a 'link' and in a positive modality case no adverse impact is necessary beyond the denial of the benefit conferred by the measure in question. All that is required is that the connection between the facts and a core value of the substantive right must be more than merely tenuous.
107. Therefore, although there is no right to a home under the Convention a provision which restricted succession rights for tenants of private landlords fell within the ambit of Article 8. Similarly, restrictions on housing assistance or cash benefits used to defray housing costs have consistently been found to have more than a tenuous connection to the right to respect for family and private life under Article 8.
108. On any view the facts in this claim have more than a tenuous connection with family and private life as well as respect for the home. The Defendant's attempt to distinguish between matters affecting peoples' "actual homes" and their access to housing generally ("potential future homes") is not borne out by the authorities, derived from established principle or even reflected in the type of discrimination in issue (which may impact on both). It should be rejected accordingly.
109. Therefore, as the facts in this claim are plainly connected to the core values of Article 8 it is immaterial whether the Scheme is properly described as a "modality", viz. the grant or removal of the right to rent a home."
i) R (Countryside Alliance and others) v Attorney General and another  1 AC 719 at paragraph 10 where Lord Bingham said, referring to Article 8:
"The content of this right has been described as "elusive" and does not lend itself to exhaustive definition. This may help to explain why the right is expressed as one to respect, as contrasted with the more categorical language used in other articles. But the purpose of the Article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose."
ii) A-MV v Finland (2018) 66 EHRR 22 at paragraph 76 where the ECtHR said:
"Article 8 "secure[s] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality". Article 8 concerns rights of central importance to the individual's identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community.
iii) Bah v United Kingdom (2012) 54 EHRR 21 where the Applicant, a national of Sierra Leone, relying on Article14 in conjunction with Article8, claimed that she had been discriminated against by not being given priority for social housing. The judgment of the ECtHR included the following:
35. The Court recalls that Article14 complements the other substantive provisions of the Convention and the Protocols, but has no independent existence since it applies solely in relation to the "enjoyment of the rights and freedoms" safeguarded by those provisions. The application of Article14 does not necessarily presuppose the violation of one of the substantive Convention rights. It is sufficient—and also necessary—for the facts of the case to fall "within the ambit" of one or more of the Convention articles. The prohibition of discrimination in Article14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the Contracting State has voluntarily decided to provide. This principle is well entrenched in the Court's case law. It was expressed for the first time in the Belgian Linguistic case.
37. The scope of [the margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment] will vary according to the circumstances, the subject matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality or sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the contracting state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation".
40. Having thus defined the scope of its examination, the Court begins by observing that there is no right under Article8 of the Convention to be provided with housing. However, as the Court has previously held with regard to other social benefits, where a contracting state decides to provide such benefits, it must do so in a way that is compliant with Article14. The impugned legislation in this case obviously affected the home and family life of the applicant and her son, as it impacted upon their eligibility for assistance in finding accommodation when they were threatened with homelessness. The Court therefore finds that the facts of this case fall within the ambit of Article8. In so finding, the Court notes the conclusion of the Court of Appeal at  of R. (Morris) v Westminster City Council and further notes the fact that the Government agrees that Article8 applies to the instant case. The Court must therefore go on to consider whether the applicant was impermissibly discriminated against within the meaning of Article 14."
(ii) Liberty's submissions
"12. Article 8 protects the right to respect for a person's home and their private and family life. The features of the Scheme in issue in this challenge bear on a person's ability to establish a home at all and engage each of these aspects of the Article.
13. Specifically, Article 8 "secure[s] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality", and concerns "rights of central importance to the individual's identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community" (A-MV v Finland (2018) 66 EHRR 22 at para 76). These rights cannot be enjoyed without access to settled accommodation.
14. In R(HA)v Ealing LBC  EWHC 2375 (Admin);  PTSR 16, a provision of the local authority's housing allocations scheme was held to fall within the ambit of Article 8. Goss J explained (at para 29 cited by Sir Terence Etherton MR in H):
"29…. The link here is said to be home and family life. There is no enshrined right to a physical home; the right is to the enjoyment of a family life. However this can in reality, only be enjoyed in settled accommodation. Accordingly, I am satisfied there is a sufficient link.
15. Clearly then the ability of an individual in general terms to acquire settled accommodation in which to enjoy a private and family life (as opposed to the ability of an individual to obtain any particular unit of accommodation) is a matter falling within the ambit of Article 8.
16. It is also relevant that the Scheme in issue here is part of a series of measures directed at making it more difficult for people without the right to remain to establish a settled lifestyle. By way of comparison, in Aristimuno Mendizabal v France (2010) 50 E.H.R.R. 50 the refusal to grant the applicant a long-term residence permit interfered with her rights under Article 8 on the basis that it left her in a precarious situation on successive short-term permits. The Court commented (at paras 70-72):
71. The applicant states in fact - and the Government has not contradicted her on this point - that the precariousness of her situation and the uncertainty as to her fate had a significant moral and financial impact on her (casual and unskilled jobs, social and financial difficulties, impossibility as a result of not having a residence permit, of renting premises and carrying on the professional activity for which she had undertaken training).
72. The Court considers that, in the circumstances of the case, the failure to issue the applicant with a residence permit for such a long period of time even though she had already been lawfully resident in France for over 14 years, constituted an undeniable interference with her private and family life.
17. The more severe impact of the "hostile environment" is an a fortiori case. That being so, the Court should lean against finding that particular aspects of the policy are outside the ambit of Article 8. Each of the elements furthers the overall aim and cannot realistically be separated from it.
19. As noted above in order to engage Article 14 it is not necessary for the effects of a scheme to be so severe as to amount to a breach of the rights contained in Article 8, nor even to an interference with those rights; it is sufficient that the effects of the scheme be linked to them. Accordingly, it is not necessary that the effects be such as to prevent an individual from being able to rent accommodation at all (as is intended to be the case for those without the right to rent); it is sufficient that they impair the individual's ability to do so (as in HA)."
(iii) The Government's submissions
"The notion of "Home" has been interpreted dynamically by this Court; however, care must be taken to respect the intentions of the authors of the Convention as well as common sense… Thus it is not enough for an applicant to assert that a particular place or property is a "Home"; he or she must show that they enjoy concrete and persisting links with the property concerned … where "home" is claimed in respect of property in which there has never been any or hardly any occupation by the applicant or where there has been no occupation for some considerable time it may be that the links to that property are so attenuated as to cease to raise any or any separate issue under Article 8… Furthermore while an applicant does not necessarily have to be the owner of the "home" for the purposes of Article 8 it may nonetheless be relevant in such cases of claims to "homes" from the past that he or she can make no claim to any legal rights of occupation or that such time has elapsed that there can be no realistic expectation of taking up, or resuming, occupation in the absence of such rights…the fact that [the Applicant] might inherit a share in the title of that property in the future is a hypothetical and speculative element, not a concrete tie in existence at this moment in time..."
"… For the reasons already given, I do not think that article 8 or article 11 is engaged. Article 14 would be if the claimants could show that their case nevertheless fell within, or was at least close to, the core of the values guaranteed by either of those articles. But this is not something that can be plucked out of the air. It must be related to a right that, as it was put in Stec v United Kingdom 41 EHRR SE 295, para 39, the state has decided voluntarily to provide. Having done so, it cannot limit access to that right, restrict it or take it away on grounds that would conflict with any of the core values. That however is not this case. The 2004 Act is not directed at anything that the state itself has provided or seeks to provide. Its sole purpose is to restrict an activity in which persons can engage if they wish but in which the state itself is not involved at all."
"(1) the right to respect for a person's "home" is not engaged;
(2) there is, at best and in principle only a tenuous link with "private" or "family" life;
(3) even if there were in individual cases, sufficient evidence from an affected individual about the strength of such a link, that would not be enough to demonstrate that the legislation nor the allegations made in this case, are within the ambit of Article 8;
(4) The evidence in this case taken at its highest only goes so far. Even if the Claimant's mystery shopping exercises are entirely reliable … they do not come close to suggesting that people who are not disqualified under the Scheme are in fact unable to find or establish a home. Article 8 ECHR rights are not engaged where a person (for example) applies for 10 tenancies and only hears back from 7 landlords; all the more so when it cannot be shown that any non-response was attributable to the state."
i) As the European Court has repeatedly explained, Article 8 does not provide the right to a home; and
ii) The submissions of Miss Kaufmann start from the wrong premise, namely that the Scheme as a whole interferes with Article 8 rights, when the real question is whether the facts of this case, namely alleged discrimination against those who have the right to rent, are within the ambit of Article 8. In this regard, Mr Pievsky submitted that the evidence does not establish that those with a right to rent a home are unable to find a home. He conceded that if the Scheme made it virtually impossible for those with a right to rent to find a home because they were being discriminated against on grounds of nationality or race, then that would constitute an interference; but it would not be enough if, for example, the Scheme meant that potential tenants with the right to rent would hear back from 70% of landlords instead of, say, 90%. Thus, he submitted that there is no sufficient evidence that those who are said to be disadvantaged are even substantially impeded in their quest for a home.
"100. In HA Goss J held that Ealing's policy that applicants for secure accommodation under section 193 of the Housing Act 1996 had to have lived in its area for a minimum of five years as a condition of joining the housing register was unlawful. Goss J addressed, obiter, whether the policy discriminated against women who were victims of domestic violence contrary to Article 14. He held that it did. He explained the link with Article 8 as follows:
"29. … The link here is said to be home and family life. There is no enshrined right to a physical home; the right is to the enjoyment of a family life. However, this can, in reality, only be enjoyed in settled accommodation. Accordingly, I am satisfied there is a sufficient link."
101. None of the authorities support the claimants' case that the MTPS falls within the ambit of Article 8 in conjunction with Article 14. The MTPS is concerned with the transfer of a secure tenant, who is already housed pursuant to Ealing's duties under Part VII of the Housing Act 1996, from one Council property to another. I cannot see that this has anything to do with a core value which Article 8 is intended to protect."
Thus, Mr Pievsky submits that the Master of the Rolls is saying that even where a Public Authority has a duty to house and wants to transfer, the situation is not within the ambit of Article 8, and if that is correct, the Claimant's case cannot be correct. Otherwise, any disadvantage in obtaining a new home would involve an interference with Article 8 rights, and that is inconsistent with the decision of the Court of Appeal in R. (H) v Ealing LBC.
"that they enjoy concrete and persisting links with the property concerned … where "home" is claimed in respect of property in which there has never been any or hardly any occupation by the applicant or where there has been no occupation for some considerable time it may be that the links to that property are so attenuated as to cease to raise any or any separate issue under Article 8…"
It seems to me to follow a fortiori that Article 8 cannot be directly engaged when the property in question is merely a potential rental property with which the person has no existing connection, and which is not in any sense his home.
"28. The Court has said on many occasions that Article 14 comes into play whenever "the subject-matter of the disadvantage … constitutes one of the modalities of the exercise of a right guaranteed", or the measures complained of are "linked to the exercise of a right guaranteed".
29. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14—taken together with Article 8—is applicable.
"45. The Court has already found that the applicant is at a disadvantage compared with certain other trade unions. The subject-matter of the disadvantage, i.e. consultation, is no doubt one which in principle is left by Article 11 (1) to the discretion of the Contracting States, but it constitutes one of the modalities of the exercise of a right guaranteed by this provision as it has been interpreted by the Court at paragraph 39 above, i.e. the right of the members of a trade union that their union be heard in the protection of their interests."
At paragraph 39, the ECtHR had said:
"39. The Court does not, however, share the view expressed by the minority in the Commission who describe the phrase 'for the protection of his interests' as redundant. These words, clearly denoting purpose, show that the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. In the opinion of the Court, it follows that the members of a trade union have a right, in order to protect their interests, that the trade union should be heard. Article 11 (1) certainly leaves each State a free choice of the means to be used towards this end. While consultation is one of these means, there are others. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests."
"98. The restriction on establishing a residence in the private rented sector as one's only or main residence prevents the individual living his own personal life as he chooses and potentially prevents him from living with members of his family and in that respect engages his right to respect for private and family life.
On the other hand, had there been such a "negative modality" doctrine, one might have expected such jurisprudence to have been articulated in one of the many judgments emanating from Strasbourg on the scope of Article 8 in conjunction with Article 14. Nor has the category been recognised in any previous English domestic decisions, so far as I am aware. The nearest recognition is the dictum of Goss J cited in paragraph 58 above but which was rejected by the Master of the Rolls in R. (H) v Ealing LBC  EWCA Civ 1127.
(i) The Claimant's Submissions
landlords to let to those individuals who do not need a "right to rent" and in particular where their status is incontrovertibly established with a passport. Thus, unless a potential occupier has convincing documentation establishing his British/EEA nationality and in particular a passport, it is to be expected that landlords and agents will use proxies instead, the obvious candidates being name, accent, colour and other signifiers of ethnicity. Such discrimination comprises direct race discrimination and, as such, is contrary to section 13 of the Equality Act 2010. It is irrelevant that the motivation of the landlord is simply to avoid the costs and the risks associated with the Scheme.
1. Non-British tenants who have a permanent right to rent face a clear disadvantage in comparison with their British counterparts;
2. Landlords are unwilling to undertake online checks for those who cannot otherwise provide documentary proof of their right to rent;
3. Landlords do not appear to treat BME persons unfavourably in comparison with their white counterparts when they both have a British passport: this is important because it indicates that landlords do not discriminate on grounds of race where the "playing field is level" i.e. where both have British passports: landlords are thus not inherently discriminatory supporting the proposition that the discrimination where neither applicant has a passport in favour of white applicants is caused by the Scheme; and
4. Landlords treat BME persons unfavourably in comparison with their white counterparts if neither have a passport.
"Which, if any, of the following types of tenants are you not willing to let to? (select all that apply)"
This question was asked of 6,584 landlords and 25% selected "Non-UK passport holders". The Defendant's letter goes on to state:
"The survey data has been weighted so that it represents 353,400 landlords who are registered with a Tenancy Deposit Protection Scheme. The reasons for landlords not being willing to let to non-UK passport holders were not explored."
Miss Kaufman submits that, although the reasons were not explored, they are obvious: these results fit well with the Claimants' mystery shopper exercises and the court can readily infer that the reason is the Scheme. With discrimination on this scale, it can be inferred that there are many prospective tenants who are failing to get a property, either altogether or for a significantly long time, because of discrimination caused by the Scheme.
(ii) The RLA's Submissions
"15. For a landlord, any period in which a tenant is not in occupation (known as a void period) is a period where the property is an expense, not a source of income. At the risk of stating the obvious, there is no rental income. This means that the landlord must meet all the running costs (maintenance, insurance, mortgage payment, service charges) out of other income. Moreover, during a void period the landlord is responsible for council tax on the property. For all landlords, thereis a pressing requirement to minimise void periods as far as possible.
16. Landlords will usually try to arrange for new tenants to take over prior to their previous tenants leaving. However this can be risky because if the previous tenant does not vacate on time as expected the landlord will need to take them to court to secure possession which takes, according to Ministry of Justice figures, e of just under 17 weeks. This places the landlord at risk of legal proceedings from the incoming tenant who is unable to occupy despite having contracted with the landlord for that time period. Accordingly many landlords will put their property on the market but will refrain from entering into any agreement with a new tenant until the property is ready to occupy.
17. The Scheme introduces delays in the process of assessing a potential tenant that cause landlords potential loss through increased void periods without rent. This is particularly true in relation to prospective tenants who are not able to straightforwardly evidence a right to rent."
"25. … For example, few landlords are familiar with the very wide range of valid passport designs in use across the EEA, let alone the range of national identity cards. Basic familiarity with such documents is unlikely to be sufficient as the overwhelming majority have more or less sophisticated anti-forgery features embedded into their designs. Without specialist knowledge landlords have limited means of checking whether the document is suitable for their purposes. When asked, officials from the Defendant's departments have informed me that they are not able to create a searchable database of valid documents as there are too many and it would therefore be too expensive. The fact that there are so many potential documents and too many for the Defendant's department to deal with is illustrative of the difficulties faced by individual landlords."
"This is not mere speculation or a hypothetical concern as lenders who wish to reduce their exposure to the buy-to-let sector will take opportunities afforded by inadvertent breaches of the mortgage terms in order to force a landlord to repay the loan or move to another lender."
"53. … RLA research shows that landlords' approaches to potential tenants have been changed by the introduction of the Scheme in exactly the way the pressures built into the structure of the scheme would suggest. Landlords are significantly less likely to consider letting to anyone without a British passport, and even less likely to consider letting to foreign nationals outside the EU."
This statement was written before receipt of the letter of 11 December 2018 from the Defendant, and is wholly consistent with the result of the survey by the Ministry of Housing, Communities and Local Governments referred to in that letter.
"If a person is not able to produce acceptable documents a landlord should not assume that they are living in the UK illegally. Subject to business requirements, landlords should try to keep the offer of accommodation open in order to provide a prospective tenant the opportunity to produce documents that will demonstrate their rights to rent, but they are not obliged to do so."
"37. What this shows is that surveys conducted by different agencies at different times have received a consistent response from landlords on this point. Landlords have made their position quite clear: a very significant proportion of them will discriminate on the basis of nationality or citizenship as a result of the Right to Rent Scheme."
1. Survey results provide compelling evidence from the mouths of landlords themselves that they will discriminate on the basis of nationality because of the scheme;
2. The mystery shopping exercises show that there does not appear to be any difference in treatment on the basis of ethnicity where both individuals have a British passport suggesting that landlords are not engaging in simple bigotry or prejudice; and
3. The logic of the right to rent Scheme incentivises precisely such behaviour.
(iii) The Government's Submissions
"There was not a significant difference in the likelihood of a non/negative response between the scenarios in either the paired or the unpaired data … therefore there is not enough evidence to support the hypothesis that where both white and BME British citizens do not have passports, the BME tenant faces racial discrimination."
Mr Pievsky posed the question: "What is the reason for the difference?" He stated that there is no clear evidence as to what the landlords were told in relation to Parimal. In any event, he submitted that this inconsistency might suggest that what has been seen is not caused by the Scheme, particularly in the absence of evidence from places where the Scheme does not exist. He submitted that racial discrimination may have existed in any event and this has been exposed by an exercise of this nature. He met the argument that this is not simple prejudice because no difference was found where both applicants had British passports by submitting that this simply does not follow and logically, scepticism by landlords in respect of non-White people could have existed before the Scheme.
- "The mystery shopping research found there were no major differences in tenants' access to accommodation between phase 1 and the comparator area.
- However, a higher proportion of BME shoppers were asked to provide more information during rental enquiries in the phase 1 area.
- Despite these differences during rental enquiries, BME shoppers in the phase 1 area were more likely to be offered properties, compared with White British shoppers.
- Together this suggests that there was no evidence of any difference regarding the final outcome from rental search.
- However, comments from a small number of landlords reported during the mystery shopping exercise and focus groups did indicate a potential for discrimination."
Mr Pievsky submitted that the mystery shopping exercises were insufficient and more evidence was needed before it could be concluded that this Scheme was causing discrimination.
1. Some landlords do prefer UK passport holders;
2. Surveys of what landlords might do or will do is not proof of discrimination; and
3. It is not clearly established that the Scheme has caused the percentage to be as high as is seen in the 2018 survey.
1. The evidence of Mr Patel referred to at paragraphs 82 and 83 above;
2. The evidence of Mr Smith referred to at paragraphs 75 - 77 above and in particular his reference to the report of Mr Tom Simcock of November 2017 "State Intervention into Renting: Making sense of the impact of policy changes" which was based upon responses from 2,792 landlords across the UK in July and August, which made the following key findings:
- 42% of landlords reported that they were now less likely to consider letting to someone without a British passport;
- 49% of landlords reported that they were now less likely to consider letting to someone who had permission to stay in the UK for a limited time period;
- 6% of landlords have refused a tenancy application as a result of the Right to Rent checks.
3. The survey of 1,071 private landlords by Shelter reflected in the report of February 2016 whereby 15% of private landlords said that the law on checking the immigration status of tenants would mean that they would be less likely to let property to people who do not hold British passports or people who appear to be immigrants and between 18 and 20% said they would be much less likely to do so, referred to in the witness statement of Polly Neate. In that statement, Miss Neate referred to the Government guidance and stated:
"Unfortunately, from our perspective, such guidance is an inadequate remedy as prospective tenants are unlikely to know they've been discriminated against if the answer from a landlord to their enquiry about renting a property is simply 'the room has gone'."
4. The evidence of Matthew Downie of Crisis, an organisation that provides help to 11,000 homeless people every year including assistance with housing, employment, health and wellbeing, skills and training. Mr Downie says:
"13. We have anecdotal evidence from our services that Crisis clients have struggled to find private rented sector accommodation because landlords would not accept them without a British passport. This includes people from the Windrush generation, even those who have naturalisation documents. For example, Crisis has been working with a client from the Windrush generation who was forced to find new accommodation after there was a fire in her house. The client had a right to rent, however new landlords would not accept her as a tenant, because she did not have a British passport. Moreover, the Scheme will undoubtedly lead to a rise in homelessness and rough sleeping for those who have a legal right to rent, but who are evicted from their homes because they live in a mixed tenancy where the tenancy was ended due to one of the tenants not having the right to rent."
5. The RLA report "The Right to Rent Scheme and the Impact on the Private Rented Sector" by Noora Mykkanen & Dr Tom Simcock dated December 2018 which considered in Chapter 2, the right to rent checks and the impact on landlord behaviour. The key findings included:
- Around 44% of landlords reported that they are less likely to consider letting to someone with a British passport. In contrast, in 2017 42% of the landlords reported they were now less likely to consider letting to someone without a British passport.
- 53% of landlords are less likely to consider letting to people who have permission to stay in the UK for a limited time period. In comparison it was 49% in 2017.
- 20% of landlords are less likely to consider letting to EU or EEA nationals, up from 17% in 2017.
- Around 5% of those surveyed have refused a tenancy application since 1 February 2016 as a result of the right to rent checks.
6. The information and evidence arising from the Claimant's report "Passport please: The impact of the right to rent checks on migrant and ethnic minorities in England" from February 2017 and in particular its evidence of discrimination on multiple fronts set out at pages 7-9 of that report;
7. The mystery shopping exercises and the reports by Myriad on them.
"On behalf of the Defendant, Parvaiz Asmat makes several objections about the Claimant's survey evidence, chief amongst which is that the low level of response was insufficient to draw 'wide ranging findings' and those responding were not selected by the Claimant in a controlled fashion. Not only does this constitute double standards (the Defendant's pilot evaluation was based on a similarly sized survey and yet found his contention that the Scheme does not cause discrimination), the Defendant's objections are redundant in the face of the consistent and striking picture which emerges from the various large-scale surveys which now exist."
I agree with those comments.
I: Government responsibility
(i) The Claimant's submissions
"The obligation on the high contracting parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals."
Miss Kaufmann submits that such positive obligations can include the obligations to pass legislation proscribing treatment which is contrary to the rights protected by the Convention.
The Defendant's approach, which would absolve the State entirely of any responsibility for the acts of third parties that it has foreseeably by its own actions caused, is not only inconsistent with the duty cast by Article 14 to secure the enjoyment of convention rights without discrimination, it runs contrary to the core purpose of the Convention which is "intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective."
(The quotation is from Matthews v United Kingdom, decision number 24833/94 at paragraph 32).
Miss Kaufmann submits that when it is the Government's own actions in introducing the Scheme which has caused the discrimination to occur, the Government retains responsibility for that even though the discrimination is carried out by third party private individuals. Miss Kaufmann submits that the Defendant's position, namely that legislation which does not compel third parties to discriminate but is a material and significant cause of discrimination cannot be incompatible with Article 14, is wrong in principle and is inconsistent with the jurisprudence emanating from Strasbourg. The duty to secure the rights protected by Article 14 includes a duty not to cause discrimination by private persons.
"Fourth, there are cases on which there is as yet no clear and constant line of Strasbourg jurisprudence. We do not have to wait until a case reaches Strasbourg before deciding what the answer should be. We have to do our best to work it out for ourselves as a matter of principle: Rabone v Pennine Care Foundation Trust  2 AC 72 is an example of this … there may be other situations in which the courts of this country have to try to work out for themselves where the answer lies, taking into account not only the principles developed in Strasbourg but also the legal, social and cultural conditions of the United Kingdom."
Miss Kaufmann submits that both Strasbourg principle and the legal traditions of the United Kingdom speak with one voice where Parliament has long spoken about discrimination in the provision of services and the Equality Act 2010 renders discrimination, whether direct or indirect, unlawful on, inter alia, grounds of race.
(ii) The Government's submissions
"Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP (the relevant provision, criterion or practice) and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment – the PCP is applied indiscriminately to all – but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified."
And then, at paragraph 33, Lady Hale said:
"In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group but also by the individual. This may be easier to prove if the reason for the group disadvantage is known but that is a matter of fact, not law."
Mr Pievsky submits that the voluntary intervention of a third-party landlord acting independently and indeed inconsistently with the requirements of the IA 2014 and the Codes is not consistent with there being such a causal link.
"That is why the court's task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies."
Mr Pievsky points out that the Convention is not directly enforceable between private citizens in the rental sector and applications to Strasbourg which suggest otherwise are likely to be declared manifestly ill-founded.
"All the evidence before us, other than of the intentions of those in charge of the operation, which intentions were not conveyed to the officers on the ground, supports the inference that Roma were, simply because they were Roma, routinely treated with more suspicion and subjected to more intensive and intrusive questioning than non-Roma. There is nothing surprising about this. Indeed the Court of Appeal considered it 'wholly inevitable'. This may be going too far, but setting up an operation like this, prompted by an influx of asylum seekers who are overwhelmingly from one comparatively easily identifiable racial or ethnic group, requires enormous care if it is to be done without discrimination. That did not happen. The inevitable conclusion is that the operation was inherently and systemically discriminatory and unlawful.
98. In this respect it was not only unlawful in domestic law
but also contrary to our obligations under customary international
law and under international treaties to which the United Kingdom is
a party. It is commonplace in international human rights instruments to declare that everyone is entitled to the rights and freedoms they set forth without distinction of any kind such as race, colour, sex and the like."
In my judgment, this applies to the Scheme set up by the Government in this case operated here effectively through landlords as opposed to through immigration officers at Prague Airport in the European Roma Rights case. This is not to create a free-standing obligation not to discriminate pursuant to Article 14 of the ECHR, as Mr Pievsky submitted, but merely addresses the issue whether the Government can be responsible for discrimination where it causes such discrimination to be carried out by third party private individuals. In my judgment it can.
i) Whether there is a legitimate aim which could justify a restriction of the relevant protected right;
ii) Whether the measure adopted is rationally connected to that aim;
iii) Whether the aim could have been achieved by a less intrusive measure; and
iv) Whether, on a fair balance, the benefits of achieving the aim by the measure outweigh the disbenefits resulting from the restriction of the relevant protected right.
There is no issue in relation to the first three of these questions and, in the present case, the issue surrounds the fourth question, namely whether in the present case on a fair balance the benefits outweigh the "disbenefits" or disadvantages.
"I conclude that there is Strasbourg authority testing the aim and the public interest by asking whether it was manifestly unreasonable, but the approach in Strasbourg to at least the fourth stage involves asking simply whether, weighing all relevant factors, the measure adopted achieves a fair or proportionate balance between the public interest being promoted and the other interests involved. The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislature's decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of "manifest unreasonableness". In this connection, it is important that, at the fourth stage of the convention analysis, all relevant interests fall to be weighed and balanced. That means not merely public, but also all relevant private interests. The court may be especially well placed itself to evaluate the latter interests, which may not always have been fully or appropriately taken into account by the primary decision-maker."
(i) The Claimant's submissions
i) Under the Convention, no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society, relying on DH v Czech Republic  47 EHRR 3 at paragraph 176 where the ECtHR said:
"Discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment."
ii) Because the discrimination in this case is on one of the most sensitive grounds proscribed by Article 14, it can only be justified on the basis of very weighty reasons. See for example Ghaidan v Godin-Mendoza  2 AC 557 at paragraph 19 where Lord Nicholls said:
"… where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified."
iii) The Equality Act 2010 renders discrimination, whether direct or indirect, unlawful, inter alia, on grounds of race and the protected characteristics in the Equality Act 2010 and the scheme of the Act reflects the suspect grounds of discrimination in respect of which strict justification is required under Article 14. Legislation or governmental policy which causes landlords to discriminate falls to be judged by no lesser a standard.
iv) Whilst the Defendant recognised a risk that discrimination would occur as a result of the Scheme, it did not list it as a cost inherent to the Scheme or otherwise explain how it would be offset by other benefits.
v) Parliament presumed, wrongly, that the introduction of the safeguards (the Code, the helpline etc) would reduce the discrimination to zero, or to so low an amount that it did not require explicit justification. But this was an untenable position when the Defendant's own evaluation of the Scheme showed that it was discriminatory.
vi) In any event the Code was never likely to address discrimination: not only is there no sanction imposed on landlords who fail to adhere to it but it is at best ambiguous in certain critical respects.
vii) Even if the Scheme is rationally connected to its stated objectives, it is simply not bringing any benefits of the kind said to justify its introduction: it is in fact ineffective (see further paragraphs 111 to 113 below).
i) discrimination resulting from the Scheme,
ii) the cost-effectiveness of the Scheme,
iii) whether the Scheme is resulting in migrants voluntarily leaving the UK, or
iv) the impact of the Scheme on agents and landlords.
i) An exchange during the hearing of the Home Affairs Committee on Windrush children of 15 May 2018 when the Home Secretary was asked if he was aware of any measure or yardstick used by the Home Office to show that the hostile environment is achieving what the Home Office wanted to achieve, to which the Home Secretary responded that he was not aware of any such measure and to which the Director General responsible for Borders, Immigration and Citizenship at the Home Office, Glyn Williams, said "I would agree, Chair, that we need to put in place an evaluation scheme" thus, confirming that there was no such evaluation scheme in place;
ii) The report of the Independent Chief Inspector of Borders and Immigration from 2016 which included a section "Hostile environment – measuring impact" where the report stated:
"7.7 there was no evidence that any work had been done or was planned in relation to measuring the deterrent effect of the 'hostile environment' on would be illegal immigrants."
At paragraph 7.23 the report goes on to state:
"However, justification for extending the 'hostile environment' measures is based on the conviction that they are 'right' in principle, and enjoy broad public support, rather than on any evidence that the measures already introduced are working or need to be strengthened, since no targets were set for the original measures and little has been done to evaluate them."
iii) The further report of the Independent Chief Inspector of Borders and Immigration dated March 2018 where there was reference to criticism of the absence of any monitoring of the Scheme at the Home Office and the report concluded:
"3.16 Overall the right to rent scheme is yet to demonstrate its worth as a tool to encourage immigration compliance (the number of voluntary returns has fallen). Internally, the Home Office has failed to co-ordinate, maximize or even measure effectively issues. Meanwhile, externally it is doing little to address stakeholders' concerns."
The Chief Inspector recommended the setting up of a new right to rent consultative panel to develop and make public plans for the monitoring and evaluation of the Scheme including the impact of the measures on illegal migrants, on landlords and on racial and other discrimination, exploitation and associated criminal activity and homelessness. The response of the Home Office to this report rejected the formation of a new consultative panel and although it agreed to continue to monitor key related indicators including homelessness figures and levels of landlord non-compliance, there was no proposal to monitor the effect of the Scheme on the two groups discriminated against on grounds of nationality and race. Miss Kauffmann referred to the second witness statement of Mr Patel where paragraph 10 he said:
"The ICIBI report, as a whole, reinforces and provides further independent and authoritative evidence in support of JCWI's contentions that the right to rent Scheme was implemented without prior sufficient thought as to the evidence base or adequate monitoring and overall it's efficacy is unproven and highly doubtful. It calls into question the utility of the Scheme in terms of enforcement activity and the hostile environment ('compliance') strategy."
iv) The report of Colin Yeo dated 1 October 2018 showing that immigration enforcement activity was declining across the board with a 35% reduction of migrants removed from the UK from the first quarter of 2014 to the second quarter of 2018.
(ii) The Government's submissions
"His policy was devised as a solution to pressing administrative and financial problems in the sphere of immigration control. These problems lay peculiarly within the executive's area of responsibility."
The right of the State to control immigration is one recognised by the ECtHR.
"The EU Facilitation Directive imposes a duty on EU member states to punish anyone who, for financial gain, intentionally assists a person, who is not a national of a member state to reside in breach of the laws of the state concerned on the residence of aliens."
"154. The court has a duty to exercise a degree of restraint in its review of Convention compliance since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question. The court has, moreover, already had occasion to observe that in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight.
155. In other words, France had a wide margin of appreciation in the present case.
156. This is particularly true as there is little common ground amongst the member states of the Council of Europe as to the question of the wearing of the full-face veil in public. The court thus observes that, contrary to the submission of one of the third party intervenors, there is no European consensus against the ban. Admittedly, from a strictly normative standpoint, France is very much in a minority position in Europe: except for Belgium, no other member state of the Council of Europe has, to date, opted for such a measure. It must be observed, however, that the question of the wearing of the full-face veil in public is or has been a subject of debate in a number of European states. In some it has been decided not to opt for a blanket ban. In others such a ban is still being considered. It should be added that in all likelihood the question of the wearing of the full-face veil in public is simply not an issue at all in a certain number of members states, where this practice is uncommon. It can thus be said that in Europe there is no consensus as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places.
157. Consequently, having regard in particular to the breadth of the margin of appreciation afforded to the respondent state in the present case, the court finds that the ban imposed by the law of 11 October 2010 can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of 'living together' as an element of the 'protection of the rights and freedoms of others'."
There was further similar support from the judgment of the European Court of Human Rights in Petrovic v Austria  33 EHRR 14 at paragraphs 38 and 42-43.
i) Is Parliament's policy, accorded all due respect, manifestly without reasonable foundation? If so that is an end of the matter and the policy will not be capable of justification. If not the court will accord Parliament's policy considerable weight.
ii) Was Parliament's policy outweighed by its potential for race discrimination?
iii) If not has the position changed by reference to the new evidence showing that the measures have had a disproportionately discriminatory effect?
i) The persons against whom the legislation is directed are in the UK unlawfully or seeking to enter the UK unlawfully and have no right to enter or remain;
ii) If they can enter into a new residential tenancy they are by definition seeking to prolong such unlawful residence and deepen their ties with the UK;
iii) In the absence of provisions such as those provided by the Scheme, there is nothing in the law which prevents landlords from helping them to do this;
iv) A person who has lived in the UK for a longer period is more likely to wish to say that, despite having no immigration status, they have a deepened ECHR Article 8 connection with the UK and can no longer be removed without incompatibility with human rights standards;
v) The measure is self-evidently designed to prevent those not entitled to be in the UK from developing and deepening their practical and de facto ties with the UK in breach of the rules set by Parliament, putting at risk the integrity and effectiveness of a workable immigration system;
vi) The Scheme is also likely to reduce pressures on the housing market and on other public resources for those who are lawfully resident and to discourage rogue landlords;
vii) Other European states have also restricted or regulated the ability of landlords to rent property to illegal migrants.
i) The Scheme derives from primary legislation which has therefore enjoyed the support of Parliament and in particular Members of Parliament elected through the democratic process;
ii) The subject matter of the legislation is socio-economic policy which is archetypically the domain of the Government and not the courts;
iii) A fair and workable immigration system will involve many different parts or strands which will often, or usually, together form a coherent whole, intended to complement each other and work together: thus, for the court to interfere with one aspect potentially causes havoc to an overall strategy devised by the Government in accordance with its democratic mandate;
iv) The European Court of Human Rights is loath to interfere with the right of a State to control immigration where there is no consensus across the Council of Europe as to what is or is not acceptable as a means of controlling immigration;
v) Control of immigration must be recognised as a political issue which features near the top of highly charged political issues which are of concern to voters whether voting in a general election, by-election or a referendum.
K: Discretion: Section 4 of the Human Rights Act 1998
"(1) subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) if the court is satisfied the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."
In general, the court will not exercise its discretion to make a declaration of incompatibility unless the legislation is incapable of being applied otherwise than in a way which is incompatible with a Convention right. Thus, in R (Bibi) v Home Secretary  1 WLR 5055 Lord Hodge said at paragraph 69:
"For the reasons which I discuss below, I think that there may be a number of cases in which the operation of the rule in terms of the current guidance will not strike a fair balance. But there may also be many cases in which it will. The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases: R (MM (Lebanon)) v Home Secretary  1 WLR 1073, paras 133 -134 per Aikens LJ. As a result, the appellants failed to show that the rule itself is an unjustifiable interference with Article 8 rights."
Furthermore, I bear in mind what was said by the Supreme Court in Christian Institute v Lord Advocate  UKSC 51 at paragraph 88:
"This court has explained that an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with Article 8 rights in all or almost all cases, the legislation itself will not be incompatible with the Convention rights."
L: Ground 2: Declaration of Irrationality
i) an Order pursuant to s.4 Human Rights Act 1998 declaring that sections 20-37 of the Immigration Act 2014 are incompatible with Article 14 ECHR in conjunction with Article 8 ECHR; and
ii) An Order declaring that a decision by the Defendant to commence the Scheme represented by sections 20-37 of the Immigration Act 2014 in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.