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by Ellen Lefley, Vrije Universiteit Amsterdam

The editors of the blog thank Thomas Spijkerboer and Jordan Dez for their revision of this post.

A recent case challenged successfully part of the UK’s ‘hostile environment’, the self-titled immigration policy created by Theresa May when she was Home Secretary to deter irregular migration to the UK. R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department was handed down by the High Court of England and Wales on 1 March 2019. In dispute was the so-called ‘right to rent’ scheme (‘the Scheme’) which stipulated that certain ‘disqualified persons’ (those who need but do not have leave to enter or remain in the UK) were prohibited from renting or occupying private residential accommodation (section 21(2) Immigration Act 2014). Notably the Scheme deputised landlords by prohibiting them from authorising any occupation of their privately owned properties by disqualified persons and obliging them to conduct ‘reasonable enquiries (i.e. documentary checks) into the immigration status of tenants (section 22). Failure to do so incurred a civil penalty of up to £3,000 (section 23) and any landlord who knew or had reasonable cause to believe that the premises were being occupied by a disqualified person committed a criminal offence (section 33A) punishable by up to five years in prison or an unlimited fine (section 33C).

The challenge

The Joint Council for the Welfare of Immigrants (JCWI) asked the court to find that the measures were incompatible with the Article 14 ECHR prohibition of discrimination in conjunction with the Article 8 ECHR right to respect for private and family life, home and correspondence. The remedies sought were a declaration of incompatibility with Articles 14 and 8, and either the stopping of the roll out of the Scheme to Scotland, Wales and Northern Ireland, or delaying such roll out until proper research was done into the Scheme’s effects. JCWI’s specific allegation was as follows: the Scheme causes landlords to discriminate on the basis of nationality and or/race ‘against those who are perfectly entitled to rent with the result that they are less able to find homes than (white) British citizens’ [§6]. JCWI argued that landlords fearful of breaking the law would avoid renting to those with a complicated immigration history, those who did not have a passport and were not white, or whose status was not immediately clear. JCWI backed this up with empirical evidence including ‘mystery shopper’ data [§27-34] and surveys of landlords, of whom 42% said they were less willing to let to people without a British passport because of the Scheme and 27% said they were reluctant to rent to people who ‘appeared foreign’ [§20].

The judgment

The court was satisfied by the Claimant’s empirical evidence of the discriminatory effect suffered by Black and Minority Ethnicity persons (‘BME’) and non-British/EU citizens and that the Scheme did not merely provide the occasion or opportunity for landlords to discriminate but it caused them to do so. Arguments of the Government that a racist landlord constituted a third-party intervenor and thus broke the chain of causation were not accepted [§106].

In relation to justification, the court acknowledged that immigration policy was an area with a particularly wide margin of appreciation. It accepted the Government’s submission that ‘how best to maintain a workable and fair immigration system is very much a matter for the executive’ and added that ‘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’ [§121]. However, the court held this was counter-balanced by the particular abhorrence with which racial discrimination is regarded, and thus agreed with the Claimant that ‘weighty reasons’ were required for justification [§109 adopted by Court a §123]. Particularly persuasive for the court was the evidence that the Scheme was ineffective: of the total number of persons who had come to the Home Office’s attention as a result of the Scheme, only 5% had been deported. Furthermore, the Court was swayed by the evidence that the Home Office was neither monitoring the discriminatory effect, the cost-effectiveness, nor the impact of the Scheme on voluntary returns of irregular migrants [§111, adopted by the court in §123]. In conclusion, the Defendant has failed to justify the Scheme, indeed it has not come close to doing so.’[§123] A declaration of incompatibility with Articles 8 and 14 ECHR was made.

The national political context

The significance of the political moment at which the case was brought cannot be overstated. The 2018 Windrush scandal had involved the so-called Windrush generation, those from Caribbean countries with right to remain under the British Nationality Act 1948 whose families had been encouraged to migrate to the UK in the 1950s, 60s and 70s. In 2018 they were mainly retirement-age citizens who had lived and paid taxes in the UK for decades, but who were detained, made homeless, sacked or denied benefits and NHS treatment because they struggled to prove they were British (some example stories here). Public outrage was redoubled when it was revealed that the Home Office had destroyed landing card documents which were some people’s only record of lawful status. The outrage and injustice felt by many was specifically for those who were lawfully in the country, but being treated as if they were not.

JCWI ‘s litigation was solely mounted on the discrimination point; there was no direct challenge to the way in which the Scheme makes irregular migrants homeless. This is not because they are unaware: the hostile environment is one which, as they commented on the day of the judgment, makes life ‘unbearable’ for those at whom the hostility is directed. The JCWI did not bring — a challenge on one or more ECHR Articles on behalf of irregular migrants themselves, rather than on behalf of lawful migrants.

The irregular migrants’ case which was not brought

Firstly, it needs to be stressed that there is an arguable case against the UK Government directly challenging the Scheme itself and its violation of irregular migrants’ human rights, and not only its discriminatory effect on non-irregular migrants. That the court declined to find that Article 8 right to one’s home is directly engaged does admittedly feel like a closed door: Spencer J states ‘the Scheme does not engage Article 8 directly by reason of interference with the rights protected by that Article. If it did, then this would be tantamount to acknowledging that Article 8 gives a person the right to a home’ [§61], citing the case of Chapman v UK.  However, the court opened a window with its conclusion that, although Article 8 does not give anyone the right to a home, ‘it gives everyone the right to seek to obtain a home for themselves and their family even if they are eventually unsuccessful, and the playing field should be even for everyone in the market for housing, irrespective of their race and nationality.’ Spencer J thus concludes that, ‘[w]here the State interferes with the process of seeking to obtain a home, in my judgment it must do so without causing discrimination and this either engages Article 8 or comes within its ambit.’ [§68] Therefore, a combined Article 8 and 14 ECHR challenge on behalf of irregular migrants, the Article 14 ground being on the basis of their migration status, is not excluded.

Furthermore, a stronger Article 8 ground alone is in relation to the eviction powers which were added to the Scheme. These gave landlords the power to evict ‘disqualified persons’ without court order, and indeed required an attempt at eviction to comply with their civil and criminal obligations. This judgment mentions evictions in passing [§11] but there is no analysis since they are not the focus (the focus is the lawful residents’ access to housing, and the lawful resident cannot be evicted). The necessity and proportionality within a democratic society of coercing landlords to evict would be analysed. The fact that such eviction would render those tenants likely homeless since the Scheme prevented them from renting further accommodation would have to be considered.

When it comes to this proportionality analysis, the perennial problem is the wide margin of appreciation in migration matters.  Spencer J stressed this deference in the judgment, highlighting that:

 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.  [§121]

Thus, any found interference with Article 8, or with a combination of 8 and 14, would have to pit enforced homelessness against the state’s sovereign ability to restrict social and economic rights as a form of migration control. Envisioning this analysis — under the heading of ‘proportionality’ in an Article 8 challenge and ‘justification’ under an Article 8 and 14 challenge — one can anticipate stronger arguments on both sides than in the present case. For example, JCWI argued that there was a disadvantage on the housing market for those lawful residents discriminated against, but their access to private rental housing was only reduced as opposed to the complete eradication of irregular migrants’ access. However, the counter-argument is also stronger in its ability to rely on the wide margin of appreciation in migration control since the human rights interference is not an unintended consequence of the Scheme — as with lawful residents — but it is the purpose of the Scheme itself.  Within this analysis, therefore, not the purpose of the Scheme but perhaps its efficacy would be the most effective argument, asking: is a high level of homelessness or detention proportional to the paltry 5% deportation rate of the current Scheme?

Article 8 is not the only option, however. The Scheme was criticised in 2017 by Hannah Lewis, Louise Waite and Stuart Hodkinson for leaving irregular migrants with ‘no real or acceptable alternative but to turn to less-detectable informal lodgings’. As a result, their analysis argued a consequential marginalisation of other aspects of their social interactions, such as ‘transactional labouring experiences that act as a driver for entry into exploitative and forced labour conditions’. Furthermore, the causal link between the state and homelessness could realistically lead to an Article 3 challenge, to the extent that forced homelessness breaches the absolute right to be protected from inhuman and degrading treatment. Distinguishing the case from MSS v Belgium and Greece, which reiterated that ‘Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home … Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living’ [§249], the Scheme is not in any way removing financial assistance, or obstructing the State providing a home. Instead it prevents access to what would otherwise be a self-funded, independent contractual arrangement with a third party.

The Permanent People’s Tribunal considered the Scheme in November 2018, highlighting the full gamut of international human rights commitments which should prevent the UK from continuing to enforce the Scheme: The ‘right to rent’ measures breach the right to adequate housing without discrimination, which is recognised in the Universal Declaration on Human Rights (UDHR) Art 25 (as an integral part of the right to an adequate standard of living), and in Art 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), further amplified by General Comment No 4 on Adequate Housing by the UN Committee on Economic, Social and Cultural Rights (1991). Insofar as homelessness affects human dignity and physical and mental integrity, the measures also breach Art 1 UDHR, Arts 3 and 8 of the European Convention on Human Rights (ECHR) and Arts 1 and 3 of the EU Charter of Fundamental Rights (EUCFR).

Furthermore, the matter is not only being highlighted retrospectively. In 2010, well before Theresa May announced the ‘hostile environment’ policy, the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living reported specifically on the rights of migrants, concluding that:

80. Regardless of their immigration status, all migrants must be afforded essential levels of protection with regard to their access to adequate housing and living conditions.

81. The provision of housing should not be denied to undocumented migrants.

However, it is unsurprising that this report did nothing to deter the UK Government. The willingness of the UK to proceed in denying the right to rent to those with irregular status is another micro case of the macro trend: the presumption of state sovereign control over migration regulation, to the detriment of human rights. Linda Bosniak’s observation in 1991, of ‘the enormous almost talismanic power that assertions of state sovereignty have had often in the area of human rights for aliens’ is just as relevant today as it was then.

In the name of lawful residents: the case which was brought

JCWI’s excellent strategic litigation, then, reflects a wider truism within migration law: that of the questionable feasibility of a successful human rights challenge based on the rights of irregular migrants alone. The margin of appreciation remains wide when the targets of an immigration scheme are those whose human rights it hurts. However, as we see in the judgment, when the innocent bystander — the lawfully resident bystander — is also hurt, even when their access to housing is only partially impaired as opposed to the irregular migrants total ban — the margin narrows and ‘weighty reasons’ rhetoric enters the judgment. Thus, in focusing on the injustice of lawful residents being treated as if they were irregular migrants, JCWI were choosing the horse that they knew would run the course, in that particular Windrush moment and within the dynamics of the court’s deference to the state in the treatment of aliens. The cynical reading perhaps is that, in choosing not to directly challenge the Scheme, the legitimacy of its aim — migration control through enforced homelessness — is tacitly accepted, even condoned. The policy in theory is left untouched and only its de facto discriminatory effect on lawful residents needs to change.

However the non-cynical reading is one of indivisibility: in highlighting the discrimination, they do not allow the Scheme to be limited to irregular migrants’ rights alone. This indivisibility is underlined by de facto result of the judgment: the housing situation of both lawful and unlawful residents is improved: the Scheme has been declared incompatible with the ECHR rights. Furthermore the strategy here not only secured a de facto relief for irregular migrants, but through this tactic of indivisibility, there is a clever and effective seizing of an opportunity to protect irregular migrants by relying on a population who are more recognisably rights holders. And the message is: a hostile environment for them is a hostile environment for us. I repeat the earlier quotation from JCWI on the day of the judgment: ‘the aim of making life so unbearable for people in the country without leave cannot be enforced without creating a hostile environment for all of us — especially those who look or sound ‘foreign’.