The challenge to the government’s ‘right to rent’ scheme is a great example of the High Court giving a withering assessment of something that is a core piece of government policy but is, at root, deeply unfair and offensive to many people.

The opening of Martin Spencer J’s judgment in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) sets the tone with a resounding passage from the equally striking case of Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; August 2004 Legal Action 32:

Expecting private landlords to police the country’s borders was never going to be popular. Not only was it a clumsy attempt to perpetuate the hostile environment against migrants, it also made it a hostile environment for small businesses. The (then) home secretary’s Policy Equality Statement explained: ‘These proposals form part of a wider set of measures which are intended to diminish the “pull” factors which draw migrants to live and work in the UK without permission.’1Tackling illegal immigration in privately rented accommodation: the government’s response to the consultation, Home Office, 10 October 2013, Annex C, page 58.

Not surprisingly, most landlords opposed the scheme, with 58 per cent of respondents to the 2013 consultation on the scheme expressing concern that the policy might lead to greater racial discrimination.2Ibid, page 12. And so the court found. The scheme led landlords (acting rationally) to treat potential tenants of non-British nationality less favourably than those with British passports.

In a further demonstration of how the Home Office had developed a hostile environment for small landlords, it sought to deflect the discrimination inherent in the right to rent scheme onto ‘the voluntary intervention of third party landlords acting independently and inconsistently with the requirements of [the Immigration Act 2014] together with the codes and guidance issued’ (para 97 of the judgment).

The rhetorical question was asked (see para 81): ‘why would the landlord take the risk [of letting to someone without a UK passport]?’ Despite a range of submissions to the court, of varying degrees of strength, the Home Office did not see fit to argue, ‘because a prospective tenant could easily sue the landlord for compensation under section 33 of the Equality Act 2010’. Set against the civil and criminal penalties facing landlords who let a home to a tenant without verifying their status, the prospect of a landlord facing a claim for unlawful race discrimination is so low that the government did not even think fit to mention it as a possibility in submissions to the court.

What a damning comment on the effectiveness of the government’s supposed commitment to maintaining legal aid for cases of unlawful discrimination. Or, indeed, of the G4S-run Equality Advisory and Support Service (EASS). The court found that ‘[t]he safeguards used by the government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective’ (para 105).

Imagine the situation if tenants had ready access to legal aid and representation so they could act effectively on instances of unlawful discrimination by landlords. It is ironic that this might have saved the government from such a comprehensive defeat on its flagship policy, which has now been found to be incompatible with article 14 of the European Convention on Human Rights, in conjunction with article 8.

The case has interesting implications for Brexit. The vexed question of how a land border between the UK and EU in Ireland would be policed boils down to either a hard border, which is rejected by all sides, or a ‘soft’ border. The court’s finding that the scheme was not capable of being applied in a non-discriminatory way places the theoretical operation of a soft border a step further away from reality.