‘Right to rent’ proves we have racial discrimination at the heart of government policy

We have all been horrified by the video showing the murder of the African American Georg Floyd – a death that flows from the attitude and discrimination against Black and Ethnic minorities in the United States.

We would like to think that here in the United Kingdom we don’t have this problem. But sadly we do. It may not be as bad a problem as in the United States but it is still a problem.

However, it’s not an insoluble problem. There have been many waves of immigrants into these islands and eventually, they have all been assimilated.

What can we do about BAME discrimination?

One way that the assimilation can be speeded up is by government action.  So what has this government done to try to ease the assimilation of Black, Asian, and Minority Ethnic (BAME) people in the UK?

Many would say ‘not a lot’.

This is a housing law blog so I will pass over the dreadful injustices done to the Windrush generation and turn to

Discrimination as evidenced by the right to rent rules

This requires all private residential landlords to check whether potential occupiers of their property have a right to rent in the UK.

I am not going to go into the details of the scheme (you can find earlier articles on this blog by doing a right to rent search) but suffice to say that over time it became apparent that ethnic minority people were finding it disproportionately difficult to rent property in England.

The Right to Rent Challenge in the Courts

The Joint Council for the Welfare of Immigrants (JCWI) was so concerned about this that in 2018 they started judicial review proceedings against the government – which proceedings were supported by Liberty, the Equalities and Human Rights Commission, and the Residential Landlords Association.

The evidence provided to the Court in both the first instance hearing and the hearing at the Court of Appeal was that the effect of these regulations (which carry potentially very serious penalties for breach, including a custodial sentence) was that it was causing landlords to discriminate against people with foreign accents, foreign names and those without a British passport.

Because, not surprisingly, in the face of these potential penalties, landlords tend to adopt a low-risk approach and choose the tenants who are least likely to get them into trouble.

They are landlords, not trained immigration officers, and a British passport is easier to recognise than foreign identity documentation. As the risk of getting it wrong could result in an expensive fine, naturally they choose the safer option.

The two decisions

At first instance, the High Court Judge accepted that the rules caused discrimination and found for the JWCI.

The same evidence, more or less, was provided to the Court of Appeal.

The Court of Appeal allowed the appeal but their reasons for this are interesting. They accepted that the High Court was right to find that the scheme does cause discrimination (although this is not inevitable) but said that this was not something they could interfere with as it was a question of policy.

And that is down to the government. Not to the Courts.

Its official – Right to Rent causes discrimination

Let’s pause for a moment. Both the High Court and the Court of Appeal have found that the right to rent rules cause discrimination. That is extraordinary.

These rules cause discrimination. Landlords are being put in a position where they feel forced to discriminate in order to protect themselves against the risk of fines or imprisonment.

Not always.  It’s not inevitable.  But it happens.

A call for change

The government must know that their right to rent rules are inherently discriminatory – as this has been found proved by two courts in the land.

Further, this discriminatory legislation, which has caused untold problems for both BAME people and landlords, has largely been for nothing. It has resulted in very few if any deportations.

And then, why should landlords be penalised anyway because they rent a property to a tenant who does not have the correct status? It’s surely up to the government to find people who are in this country illegally, not landlords. That’s why we have a borders agency.

The main result of this legislation has been to make life more difficult for BAME people, landlords, and letting agents.

Landlords and letting agents can cope with it (although they don’t like it) but it can be devastating for BAME individuals and families.

Getting rid of the right to rent legislation would go some way to supporting BAME people and encouraging the UK on the road to racial harmony. Instead, we have institutional racism within the heart of government policy.

When can we get rid of this repellant and discriminatory law?

Note – if you want to find out more about the Right to Rent litigation see this webinar with Justin Bates one of the barristers in the case. Ticket fees will be donated to Crisis UK.