Written evidence submitted by the Joint Council for the Welfare of Immigrants [IOC 302]

About JCWI

JCWI is an independent national charity established in 1967. Our mission is to promote justice, fairness and equality in immigration and asylum law and policy. We have been working to monitor the impact of COVID on migrant  and BAME communities in the UK, particularly within the immigration system. We have given both written and oral evidence to the Home Affairs Select Committee on a variety of these issues, including in relation to housing.

Overview

We submit this evidence as we believe it is crucial the Committee consider how immigration law and policy has distorted the UK’s private rental sector along racialised lines. This has been confirmed in the last few weeks by the outcome of JCWI’s case challenging the ‘right to rent’ scheme.

The Court of Appeal has allowed the government’s appeal in the right to rent case. Last year the High Court had found that the government’s scheme requiring landlords to verify the immigration status of their tenants violated human rights law because it caused racial discrimination. The majority in the Court of Appeal found:[1]

1. The High Court was correct to say the scheme caused racial discrimination – “I have ultimately concluded that he was right to find that those who had a right to rent, but did not have British passports (or, particularly, had neither such passports nor ethnically-British attributes), were the subject of discrimination on the basis of their actual or perceived nationality; and that that discrimination was caused by the Scheme in the sense that, but for the Scheme, that level of such discrimination would not have occurred.” (para 66)
2. Nevertheless, such discrimination was proportionate when balanced against the government’s legitimate legal interest in maintaining immigration controls through the Hostile Environment.

COVID and Right to Rent

We are seeing that COVID is not impacting on all communities equally. BAME communities are being hit harder. No doubt there are many socioeconomic factors involved, but access to safe and decent housing is one of them. This includes access to housing with sufficient space for self-isolation, green space, access to hospitals, access to good and not over-subscribed civic and private amenities, freedom from damp and overcrowding, lower levels of air pollution etc. All these things can make the difference between a family that is able to safely navigate the current crisis, and one that cannot.

Both the High Court and the Court of Appeal have now concluded that the right to rent scheme places ethnic minority British people and foreign nationals at a disadvantage in accessing housing. A significant proportion of landlords are either unwilling or less likely to rent to someone who is not British. Where someone has no passport, some landlords will take into account markers of ethnicity such as skin colour or name to act as a proxy for nationality. We emphasise that these findings were upheld by the majority in the Court of Appeal, although it did take a more conservative view of the level of discrimination, and the consequent impact of the discrimination.

It is an unavoidable conclusion that by restricting their access to the housing market and placing them at a disadvantage against white British people, BAME and foreign nationals will be more likely to be at the back of the queue for safer, more spacious, more desirable housing at any given price point. The right to rent scheme must be suspended immediately. No-one’s level of access to a safe place to live should be affected by their nationality or their race.

Further evidence about the right to rent scheme and its impacts can be found in JCWI’s report Passport Please.[2]

Government Reaction to Ruling

We are extremely concerned that the government is failing to appreciate the seriousness of what the Court of Appeal found. Its reaction to the ruling demonstrates a worrying lack of understanding of the judgment, and a failure to understand its significance at a time when people’s lives may depend more than ever on their housing situation or risk of homelessness.

We understand that the government will be pleased that the Court of Appeal did not consider the right to rent scheme has violated human rights law. Of course, on our side we are disappointed and we disagree with those aspects of the judgment that went against us. We also consider the Court of Appeal has underestimated the level and the impact of the discrimination it found to have occurred. We are preparing to appeal the judgment, but we do understand that we have not won the legal case yet.

However, given the clear finding from two courts now that the right to rent scheme causes racial discrimination, we would have expected some degree of self-reflection from the government. The response has instead been deeply disappointing:

The first tweet is misleading and disappointing from a Minister. The Court found that the right to rent scheme does lead to discrimination. It ‘need’ not only in the sense that if all landlords prioritised non-discrimination over and above their own economic interests then the scheme does not mandate that they discriminate. That is not what the court found was actually happening in the real world. The scheme nevertheless causes racial discrimination that would not have occurred if it did not exist. It is hard to express how dispiriting it is, after all the promises around the Windrush Lessons Learned review, to have a government minister expressing ‘delight’ in such a manner, while failing to acknowledge the awful cost to human dignity and safety that is caused and that has been caused by racial discrimination in accessing housing.

The second follows the same line of reasoning, and seems to be part of the Home Office’s new strategy of social media ‘rebuttal’, where it targets reputable NGOs and their complaints against it, and seeks to undermine their credibility by making an irrelevant point. In this case the right to rent scheme not only does currently operate with discrimination, it causes greater levels of discrimination.

This rebuttal strategy was also observed in relation to multiple NGOs asking for a suspension of NHS charging. The Home Office tweeted under each such ask suggesting that the person in question was being misleading because it had already added COVID to the list of exempt diseases. But, of course, the NGOs in question had all signed a letter acknowledging that fact and setting out the reasons why such an exemption was insufficient to protect public health.

What characterises these ‘rebuttals’, is an extremely cynical approach to wording, combined with a seemingly deliberate misunderstanding of the point being made. The government ought to be fully aware of the real complaint in each case, but chooses to answer in a way that is not designed to assist the public in understanding the situation, but rather to undermine the credibility of the messenger, while spreading a line that is itself highly misleading. In the case of NHS charging, it was to distract from a conversation about the deterrent effect of charging, notwithstanding an exemption. In the case of right to rent, it is to draw attention away from the clear finding that the scheme causes racism in the reality in which we all live, while asking us, as Lennon did, to imagine a hypothetical world in which it might not.

We do not expect government to always agree with us. We expect it to express its disagreement in good faith and without such propagandising. We are in a time of national crisis. It is essential that the Government engage seriously with expert stakeholders and NGOs, instead of resorting to PR tactics and petty point-scoring on social media.

May 2020