A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The Court of Appeal has delivered its verdict on a High Court decision that, until now, had held that the Right to Rent scheme was discriminatory and in breach of the European Convention on Human Rights (ECHR). You can read our update on the High Court’s 1 March 2019 judgment in our ebriefing.
The Right to Rent scheme prohibits landlords in the private rented sector from letting properties to prospective tenants who do not have leave to remain in England or a ‘right to rent’. This applies to private registered providers of social housing where they are allocating outside any nomination from a local authority under the Housing Act 1996.
The High Court heard that, as a result of the scheme, and faced with criminal sanctions for failure to comply with it, many private landlords had requested to see a British passport as a condition of granting a tenancy in order to evidence a right to rent.
An independent body, the Joint Council for the Welfare of Immigrants, which advocates for the rights of migrants brought a claim that contended that, in a number of cases, this had the effect of discriminating against foreign nationals who were subject to requests to provide a British passport. The High Court heard that applicants who were unable to produce British passports, and those without ethnically ‘British’ attributes, such as name, were subject to discrimination by some landlords.
The charity argued that this breached the ECHR. Specifically, it contended that the scheme breached the Article 14 right not to be subject to discrimination on the grounds of certain characteristics, particularly when viewed alongside the Article 8 right to a private home life. The High Court agreed, ruling that the Right to Rent scheme was discriminatory.
Court of Appeal decision
Following an appeal by the Secretary of State, the case passed to the Court of Appeal, which has now given its judgment in the case. The Court of Appeal agreed with the Judge in the earlier judgment: prospective tenants who did indeed have the right to rent, but who did not have a British passport, had been subject to discrimination by their landlords. This discrimination, on the basis of the applicants’ actual or perceived nationality, would not have occurred were it not for the Right to Rent scheme.
However, the Court highlighted that, on the whole, the scheme could be, and often was, effectively implemented by private landlords without using discriminatory measures such as demanding a British passport.
Crucially, the Court of Appeal focused on the legislative objective of the Right to Rent scheme: to discourage certain patterns of unlawful immigration. Taking into account that the scheme could be implemented without discrimination, the Court of Appeal decided that the scheme was a proportionate means of achieving its objective. In other words, discrimination resulting from the Right to Rent scheme can be justified, given the political objectives of the legislation.
For English landlords, the decision is unlikely to have an impact in practice, as the Government had asked landlords to continue to comply with the scheme despite the High Court decision. However, following the Court of Appeal’s landmark ruling, the Right to Rent scheme, which currently only applies in England, is likely to be rolled out to the remaining devolved administrations across the United Kingdom.
It remains to be seen whether a final appeal to the highest court in the country, the Supreme Court, could follow, given the public importance of such a decision. However, until such time, the Court of Appeal’s decision, and the applicability of the Right to Rent scheme, stands.
If you have any questions about this judgment, or how the Right to Rent scheme affects your organisation, please get in touch with Emma Hardman.
 R (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department (Residential Landlords Association and others intervening)  EWCA Civ 542
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