ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE HON MR JUSTICE MARTIN SPENCER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HENDERSON
LORD JUSTICE HICKINBOTTOM
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
THE QUEEN ON THE APPLICATION OF
THE JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS
|- and -
THE NATIONAL RESIDENTIAL LANDLORDS ASSOCIATION
THE EQUALITY AND HUMAN RIGHTS COMMISSION
THE NATIONAL COUNCIL FOR CIVIL LIBERTIES
(instructed by Government Legal Department) for the Appellant
Phillippa Kaufmann QC and Jamie Burton (instructed by Leigh Day) for the Respondent
Justin Bates and Brooke Lyne (instructed by Anthony Gold Solicitors)
for the First Intervener
Nick Armstrong (instructed by The Equality and Human Rights Commission)
for the Second Intervener
Martin Westgate QC, James Kirk and Daniel Clarke (instructed by Liberty)
for the Third Intervener
Hearing dates: 15-17 January 2020
Further written submissions: 4 February 2020
Crown Copyright ©
Lord Justice Hickinbottom :
i) Justin Bates and Brooke Lyne appeared for the National Residential Landlords Association ("the NRLA"). The NRLA is an organisation which represents the interests of residential landlords, formed on 1 January 2020 as the result of a merger of the Residential Landlords Association ("the RLA") and the National Landlords Association. The RLA intervened before the court below. At the time of merger, the RLA had 30,000 members and associate members with a combined portfolio of about 300,000 properties. The NRLA has about 80,000 members.
ii) Nick Armstrong appeared for the Equality and Human Rights Commission ("the Commission"). The Commission is an independent non-departmental government body, established by the Equality Act 2006, dedicated to promoting and upholding equality and human rights across Great Britain.
iii) Martin Westgate QC with James Kirk and Daniel Clarke appeared for the National Council of Civil Liberties ("Liberty"). Liberty is an independent membership organisation dedicated to, amongst other things, campaigning for fair and equal treatment.
As the outset, I thank all Counsel, and their supporting teams, for their substantial assistance.
The Scheme: Sections 20-37 of the Immigration Act 2014
"(1) For the purposes of this Chapter a person ("P") is disqualified as a result of their immigration status from occupying premises under [an RTA] if –
(a) P is not a relevant national, and
(b) P does not have a right to rent in relation to the premises.
(2) P does not have a 'right to rent' in relation to premises if –
(a) P requires leave to enter or remain in the United Kingdom but does not have it, or
(b) P's leave to enter or remain in the United Kingdom is subject to a condition preventing P from occupying the premises.
(3) But P is to be treated as having a right to rent in relation to premises (in spite of subsection (2)) if the Secretary of State has granted P permission for the purposes of this Chapter to occupy premises under [an RTA].
(5) In this section 'relevant national' means –
(a) a British citizen
(b) a national of an EEA state other than the United Kingdom or
(c) a national of Switzerland."
"(1) A landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.
(2) A landlord is taken to 'authorise' an adult to occupy premises in the circumstances mentioned in subsection (1) if (and only if) there is a contravention of this section.
(3) There is a contravention of this section in either of the following cases.
(4) The first case is where [an RTA] is entered into that, at the time of entry, grants a right to occupy premises to –
(a) a tenant who is disqualified as a result of their immigration status,
(b) another adult named in the agreement who is disqualified as a result of their immigration status,
(c) another adult not named in the agreement who is disqualified as a result of their immigration status (subject to subsection (6)).
(6) There is a contravention as a result of subsection (4)(c) only if –
(a) reasonable enquiries were not made of the tenant before entering into the agreement as to the relevant occupiers, or
(b) reasonable enquiries were so made and it was or should have been apparent from the enquiries that the adult in question was likely to be a relevant occupier."
i) Section 23 empowers the Secretary of State to give the landlord a penalty notice for a penalty of up to £3,000. Section 24 sets out a number of statutory excuses available to a landlord served with a penalty notice, which include that the landlord can show that an agent acting on his behalf is liable for the contravention or that "the prescribed requirements were complied with before the [RTA] was entered into" (section 24(2)). Those requirements are prescribed by regulation (see paragraphs 15-18 below). However, the Secretary of State may serve a penalty notice without establishing whether a landlord has or may have an excuse for an apparent contravention of the Scheme (section 28(1)). Where, following any representations, a penalty notice is maintained, a landlord has the right to appeal to the county court where the appeal is in the form of a de novo hearing (section 30).
ii) Section 39 of the Immigration Act 2016 ("the 2016 Act") amended the 2014 Act to make the breach of section 22 by a landlord a criminal offence, where the landlord "knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status…" (section 33A of the 2014 Act), for which the maximum sentence is five years' imprisonment and/or a fine (section 33C). It is a defence for the landlord to prove that he has, within a reasonable time, taken reasonable steps to terminate the RTA (section 33A(6)).
iii) Section 40 of the 2016 Act inserted a new section 33D into the 2014 Act, under which the Secretary of State may serve a notice on the landlord informing him that the premises are occupied by an irregular immigrant, whereupon the landlord may (a) terminate the agreement, or (b) seek possession under new mandatory grounds under the Rent Act 1977 and the Housing Act 1988. If the landlord does not take such action, then he is liable to prosecution under section 33A.
iv) Where a landlord is convicted of a section 33A offence, the offence is a "banning order offence" under the Housing and Planning Act 2016: the First-tier Tribunal has the power to make a "banning order", prohibiting the offender from letting housing in England. A breach of a banning order is subject to a civil penalty of up to £30,000, and is a criminal offence with a maximum sentence of 51 weeks' imprisonment and/or a fine (sections 21-23 of that Act). A landlord subject to a banning order (i) must be placed on the Database of Rogue Landlords and Property Agents (section 29) and (ii) may also be deprived of a landlord's licence required by the Housing Act 2004.
v) A finding that a landlord has let accommodation to an irregular immigrant may have other adverse commercial consequences, e.g. under any mortgage of the property.
i) List A Group 1 includes a British, EEA Member State or Swiss passport or national identity document, a UK residence card or biometric immigration document, or any other passport (even if expired) which shows the holder has the right of abode or indefinite leave to remain in the UK.
ii) List A Group 2 includes a UK or Ireland birth certificate, a full UK driving licence, recent benefits papers, a recent letter from a Government department confirming that the person is known to them, and a recent letter from a British passport holder confirming that they have known the person for three months.
iii) List B includes a current passport from any country or a current UK biometric residence permit or Home Office immigration status document showing a right to stay in the UK for a limited period, and a current residence card as a family member of an EEA or Swiss national.
i) 80% of tenants in the private rental sector have passports (although not necessarily British).
ii) 97% of people without a passport were born in the UK and are likely to be British citizens, and therefore entitled to a British passport.
iii) There are under 6,000 short term residents in the UK with no passport.
iv) One million biometric residence permits have been issued since 2008, from that date such permits being the only documents issued to non-EEA nationals who have permission to remain in the UK for more than six months; and their family members have been issued with biometric residence cards.
In short, the vast majority of potential tenants in the private sector will be able to satisfy the prescribed requirements by producing a single document.
The Risk of Discrimination
"[The Joint Council's] main concern is that these proposals are very likely to lead to racial profiling and discrimination against BME [Black and Minority Ethnic] prospective tenants.… [The proposed immigration status checks] will serve to encourage indirect discrimination and in many cases direct discrimination. It will be far easier for a landlord to let his or her property to a British/EU national who will simply have to produce their passport to confirm status. The consultation itself quotes the Department for Communities and Local Government study that indicates more than half of those in private rented accommodation are non-British or Irish residents and that most new migrants are housed in the private rental sector. Thus, migrants will be disproportionately affected by these proposals.
Landlords fearful of breaking the law or facing a fine will find it far easier to avoid renting to anybody who could have a complicated immigration history or anybody whose status is not immediately clear. This will undoubtedly result in BME individuals losing out on tenancies and increasing their chances of being made homeless."
"The consultation gave a clear message that discrimination against foreign born tenants is unacceptable. Particular concern was raised that the regulations would result in discrimination motivated not because of overt prejudice but because of administrative convenience where some people are more likely than others to have readily available documentation. The Government is equally concerned to address the risk that the new checking duty will result in unlawful discrimination.
The legislation will include provision for a statutory non-discrimination code providing clear guidance on the steps landlords must follow to avoid unlawful discrimination, which may be taken into account by tribunals considering claims of unlawful discrimination. In addition, the Government will put into place administrative support and guidance for landlords and will continue to work across the sector to embed the new procedures and raise confidence among landlords that they can continue to provide accommodation without risk.
The Government believes that any added administrative burden can be mitigated by supporting prospective tenants to satisfy the evidence requirement at the point at which they apply for tenancies. Prospective tenants will be assisted and guided in creating their own evidence pack to meet the requirements so that the duty on landlords will be minimised."
"Heavier penalties may provoke discrimination against those perceived to be a higher risk based on an unfounded belief that the person may be a foreign national.
Legal migrants and landlords will be supported by the Home Office through on-line guidance and advice services to minimise the risk that legal migrants might be viewed as a greater risk than prospective tenants from within the settled population. Migrants will be advised as to how to collate and present a package of appropriate documents that meets the requirements in advance of seeking accommodation. Landlords wishing to check that the requirements have been met will be supported through telephone advice."
"The new rules might lead landlords to discriminate against people who they perceive to be foreign rather than conduct proper checks to ascertain their actual status."
In response, the Secretary of State said:
"The level of checks required are de minimis – usually to the extent of copying one document with no need for further action. The Home Office will make regulations specifying the document types that must be checked and copied, and the document list has been constructed so that it reflects existing checking best practice by landlords and encompasses documents which are commonly held by the vast majority of those entitled to live in the UK. A Code of Practice will provide guidance in assisting landlords to conduct such checks without breaching equality legislation. The need to treat all tenants equally will be reinforced in guidance and tools provided for landlords.
Respondents to the consultation raised concerns that [non-EEA migrants who are not settled here] may suffer administrative discrimination, where landlords may consider that conducting more complex checks will prove more burdensome. The Government recognises that extra support may be required in some circumstances to ensure that legitimate visitors and legal migrants are not barred from the housing market (for example, the Home Office is committed to providing a service that will deal with general telephone enquiries asking for advice and allow landlords to request swift confirmation of a person's status).
Where migrants with outstanding applications or appeals know that they need to undergo a landlord check in advance, the Home Office will provide a pre-certification service for these migrants, enabling them to obtain the documentation they need upfront. The Home Office also intends to amend the immigration application process to allow applicants to retain their biometric residence permit when making an immigration application. This will allow the migrant to show evidence of their identity, nationality and immigration status to a landlord [and] enable the landlord to carry out a speedy and accurate check with the Home Office on the person's current status."
"96. … While there is no right under article 8 ECHR to be provided with housing ([Chapman v United Kingdom (ECtHR Application No 27238/95) (2001) 33 EHRR 18]), the prohibition will prevent individuals from accessing the private rented sector in order to rent their only or main residence, and will further prevent individuals from living together at privately rented premises as their only or main residence where one of them is disqualified from occupation by reason of their immigration status. It therefore has the potential to impact on an individual's right to respect for his home, private and family life.
98. The restriction on establishing a residence in the private rented sector as one's only or main residence prevents the individual living his own personal life as he chooses and potentially prevents him from living with members of his family and in that respect engages his right to respect for private and family life. However, the restriction can be justified on the basis that it is both necessary and proportionate in pursuit of the legitimate aim of immigration control.…
99. The restriction will also impact on the right to respect for family life enjoyed by both the individuals themselves, and also British citizens, EEA nationals and those with an unlimited right to reside in the United Kingdom who will be prevented from arranging accommodation for themselves and any adult family member who is disqualified from occupation. This engages article 8 and arguably article 14. In relation to article 8, the restriction can be said to be justified and proportionate for the reasons stated above. In relation to article 14, the margin of appreciation is relatively wide given the differential treatment is based on immigration status, which involves an element of choice and the socio-economic nature of the subject matter (see [Bah v United Kingdom (ECtHR Application No 56328/07)  54 EHRR 21 at ]). The restrictions here are therefore justified for the reasons set out above.
100. The Department is therefore satisfied that these provisions are compatible with articles 8 and 14."
As can be seen, this appeared to recognise that the restriction of occupation of premises by irregular immigrants engaged article 8 as well as article 14, but it did not specifically consider the potential discriminatory treatment adverse to those who had the right to rent but whom landlords would find it less administratively convenient to deal with because (e.g.) they did not have a British passport.
"As a matter of good practice landlords and their agents should apply the right to rent checks in a fair, justifiable and consistent manner regardless as to whether they believe the prospective tenant to be British, settled or a person with limited permission to be here.
Landlords should ensure that no prospective tenants are discouraged or excluded, either directly or indirectly, because of their personal appearance or accent or anything else associated with a person's race. They should not make and act upon assumptions about a person's immigration status on the basis of their colour, nationality, ethnic or national origins, accent, ability to speak English or the length of time they have been resident in the UK.
The best way for landlords to ensure that they do not discriminate is to treat all prospective tenants fairly and in the same way, making sure their criteria and practices in this regard are appropriate and necessary.
Prospective tenants should not be treated less favourably if they produce acceptable documents showing a time-limited right to stay in the UK. Once a person who has time-limited permission to stay in the UK has established their initial and ongoing entitlement to stay, they should not be treated less favourably than others even if further right to rent checks are subsequently required, as prescribed by the Scheme and set out in the code of practice. Neither should a landlord treat less favourably a prospective tenant who has the required combination of documents showing their right to rent (for example a driving licence with a long UK birth certificate) but does not have a passport. There should be no need to ask questions about a prospective tenant's immigration status where it is clear that they have permission to stay here. Any subsequent further checks need only establish that the tenant is still here with permission. If a person is not able to produce acceptable documents a landlord should not assume that they are living in the UK illegally. Subject to business requirements, landlords should try to keep the offer of accommodation open in order to provide a prospective tenant the opportunity to produce documents that will demonstrate their right to rent, but they are not obliged to do so."
Implementation of the Scheme
"42% of landlords said that the Right to Rent requirements have made them less likely to consider someone who does not have a British passport. 27% are reluctant to engage with those with foreign accents or names. Checks are not being undertaken uniformly for all tenants, but are instead directed at individuals who appear 'foreign'".
"The evaluation found no hard evidence of systematic discrimination towards foreign nationals from letting agents or landlords, or that their access to the housing market was restricted as a result of the Scheme. At an overall level there did not appear to be major differences for White British and BME shoppers in accessing accommodation between the phase 1 location and the comparator area. There was evidence of differences at particular stages of the process of renting a property, although these were not necessarily indicative of discrimination against BME shoppers. A very small number of potentially discriminatory attitudes were reported. Whilst the evaluation did not find hard evidence of systematic discrimination, the Government will continue to provide clear guidance on how to avoid acting in this manner…. Any landlord who discriminates is acting unlawfully and liable to prosecution."
i) Peter: British citizen, ethnically British name, British passport;
ii) Harinder: British citizen, non-ethnically British name, British passport;
iii) Ramesh: non-British citizen, non-ethnically British name, indefinite leave to remain (settled status) and time unlimited 'right to rent' evidenced through one unspecified document;
iv) Colin: British citizen, ethnically British name, no passport but time unlimited 'right to rent' evidenced through two unspecified documents;
v) Parimal: British citizen, non-ethnically British name, no passport but time unlimited 'right to rent' evidenced through two unspecified documents; and
vi) Mukesh: non-British citizen, non-ethnically British name, 2 years' limited leave to remain evidenced through one document.
i) 42% of landlords who responded to the survey said that they would be less likely to rent to anyone who did not have a British passport, which rose to 48% when they were explicitly asked to consider the (then new) criminal sanction. There were in addition eight agents who said that, as a result of the Scheme, landlords had expressed an unwillingness to rent to tenants who do not hold a British passport. The report concluded that landlords are less willing to accept tenants who do not hold a British passport as a result of the Scheme.
ii) 51% of the landlords said that they were now less likely to consider letting to foreign nationals from outside the EU, with 18% saying they were less likely to rent to EU nationals as well. The report concluded that foreign nationals were being discriminated against as a result of the Scheme.
i) 42% of landlords reported that they were less likely to consider letting to any prospective tenant without British passport, 47% that they were less likely to consider letting to foreign nationals from outside the EU/EEA, and 48% that they were less likely to consider letting to those who have only a right to let for a time limited period.
ii) In the 18 month period between February 2016 and July/August 2017, 6% of landlords had in fact refused a tenancy application as a result of the right to rent checks.
From this survey, Mr Smith concludes (at paragraph 53 of his statement) that, as a result of the Scheme:
"Landlords are significantly less likely to consider letting to anyone without a British passport, and even less likely to consider letting to foreign nationals outside the EU."
i) In response to the question, "Which, if any, of the following types of tenants are you not willing to let to? (Select all that apply)", 25% of 6,584 landlords selected "Non-UK passport holders".
ii) In answer to a question about compliance requirements, 15% of landlords said they had not carried out a right to rent check for their most recent letting and 62% said that they had (some letting having taken place before the Scheme had come into force).
The survey data were collected in such a way that the results could be weighted so that those responses were considered representative of over 350,000 landlords who were registered with a protection scheme.
The Grounds of Appeal
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
This article therefore provides for a qualified right, in two senses. First, article 8(1) simply gives a "right to respect" for private and family life etc. Second, even where an individual can show that that there has been an interference with the rights falling within article 8(1), that interference can be justified by the state under article 8(2) in which case it will not amount to a violation of the article.
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Again, even where such discrimination can be shown, the state may be able to justify it such that there is no breach of article 14, particularly where the substantive right involved is a qualified right (Petrovic v Austria (European Court of Human Rights ("ECtHR") (Application No 20458/92) (2001) 33 EHRR 14 at ).
Ground 1: The judge erred in holding that the Scheme and/or the facts of this case fall within the ambit of article 8 for the purposes of article 14. The Joint Council cross-appeal on the ground that, whilst the judge was right to hold that the facts of this case as he found them to be fall within such ambit, he was wrong to conclude that they do not fall within the scope of article 8 such that, in addition to an interference with article 14, there is a direct interference with article 8 rights which requires justification by the state. Like the discrimination under article 14, it is submitted that the interference with the article 8 rights is not justified.
Ground 2: The judge erred in finding that, on the evidence, the Scheme results in discrimination on grounds of nationality and/or ethnicity; or, alternatively, in not making an adequate assessment of the discrimination so caused.
Ground 3: The judge erred in holding that the state, in the form of the Secretary of State, is responsible for any such discrimination.
Ground 4: The judge erred in concluding that any discriminatory effects of the Scheme are not justified as a proportionate means of achieving a legitimate aim.
Ground 5: Even if the Scheme falls within the ambit of article 8 and results in unjustified discriminatory effects for which the Secretary of State is responsible, and thus is in breach of article 14, the judge erred in granting a declaration of incompatibility in respect of the whole scheme.
Ground 6: He was also wrong to make a declaration that, without further evaluation of the efficacy and discriminatory effect of the Scheme, the extension of the Scheme to the other home nations would be irrational and a breach of the PSED.
Grounds 2 and 3: Causation
"The scheme places on landlords a heavy administrative burden with potentially serious penal consequences and is therefore both costly and risky. Given that most landlords have only one interest, namely letting their property and maximising their income, delays in letting which lead to periods of non-occupancy are unwelcome and the scheme heavily incentivises landlords to let to those individuals who do not need a 'right to rent' and in particular where their status is uncontrovertibly established with a passport. Thus, unless a potential occupier has convincing documentation establishing his British/EEA nationality and in particular a passport, it is to be expected that landlords and agents will use proxies instead, the obvious candidates being name, accent, colour and other signifiers of ethnicity. Such discrimination comprises direct race discrimination and, as such, is contrary to section 13 of the Equality Act 2010…".
i) The judge (in my view, correctly) identified the discrimination as essentially based on nationality rather than race – the landlords wish to have British tenants – although, where the potential tenant does not have a British passport, the proxies for nationality are ethnically-based.
ii) Without prejudice to Ms Kaufmann's submission that the Scheme caused or contributed to that discrimination (in the sense that, but for the Scheme, the level of discrimination would have been less), the judge found (again, in my view, rightly) that any discrimination against potential tenants who do not hold British passports or do not have ethnically-British attributes is in any event direct discrimination by the relevant landlords on the basis of nationality and/or race.
iii) On the evidence, the judge found that "most landlords have only one interest, namely letting their property and maximising their income". I shall return to that factual finding shortly (see paragraphs 68-69 below).
i) In respect of the February 2017 mystery shopping exercise, the different treatment of Harinder and Ramesh (said to be as a result of their respectively having and not having a British passport) may equally have been the result of the former having a passport rather than because he was British, particularly as Peter did better than Colin and Harinder did better than Parimal. The evidence does not support the proposition that landlords prefer British (as opposed to other) passports.
ii) There may have been a bias in the exercise, because Peter and Harinder offered a "British passport", whereas Ramesh offered merely a "Home Office document" and Colin (and, apparently, Parimal) merely unidentified "other ID". The disparity may have resulted from landlords preferring the offer of a specific qualifying document. As the Discrimination Code of Practice (quoted at paragraph 28 above) confirms, it is not unlawful for a landlord to favour a potential tenant who appears willing to provide a document or documents demonstrating that he has a right to rent over those who do not.
iii) The exercise restricted consideration to "paired" data only. Even if such data have greater significance, "unpaired" data have some statistical value too. The unpaired data showed no statistical differences, but that in itself was worthy of some consideration.
iv) The exercise treated all non-responses as negative responses, and all "neutral" responses as positive responses.
v) The February 2017 report did not find any statistically significant evidence of discrimination on the grounds of ethnicity as between Parimal and Colin. Although the later report did find such evidence, the evidence again should have been considered as a whole.
vi) The February 2017 exercise comparing Ramesh and Harinder – which found a statistically significant difference, which suggested discrimination on grounds of British passport (i.e. nationality) – was not repeated; so there is no evidence of replicability.
vii) The February 2017 exercise was performed in the first year of the Scheme's operation. Over time, it could be expected that tenants and landlords would become more familiar with the Scheme, and the results obtained do not necessarily reflect the mature position.
viii) The Joint Council's Report of September 2015 accepted that "discrimination in the housing market is already commonplace" (see paragraph 30 above). The mystery shopping exercise did not properly address the extent to which that discrimination was exacerbated, if at all.
ix) There was considerable evidence that landlords often asked for passports or similar identification documentation even before the Scheme (see, e.g., paragraph 8 above). Again, the exercise did not address the consequences of the change resulting from the Scheme.
x) The mystery shopping exercises were limited to initial responses only, without taking into account the tenancy-seeking process as a whole (as did the Secretary of State's own October 2015 exercise: see paragraph 32 above).
xi) Turning to the surveys, the level of response was low. The Joint Council's September 2015 survey (see paragraph 30 above) was based on 27 tests. For its February 2017 survey (see paragraph 40 above), only 108 landlords responded, together with 208 letting agencies and 17 from "organisations working with or on behalf of affected groups". Other surveys (including the RLA surveys: see paragraphs 41-42 above) had a larger response group, but still under 3,000 despite the fact that RLA approached 65,000 individuals and sought responses from other landlords on the internet. The largest survey (and the only one with over 3,000 responses) was the Ministry of Housing 2018 survey of 8,000 landlords and agents, which indicated that no more than 25% of landlords discriminated in the ways suggested (see paragraph 43 above).
xii) Those responding to the surveys relied upon by the Joint Council were not selected: there could therefore be less confidence in the representative nature of the responses, and specifically there was a risk that those who responded for whatever reason did not like the Scheme and thus that the results were infected with response bias.
"What this shows is that surveys conducted by different agencies at different times have received a consistent response from landlords on this point. Landlords have made their position quite clear: a very significant proportion of them will discriminate on the basis of nationality or citizenship as a result of the Right to Rent Scheme."
In his view, "the logic of the Right to Rent Scheme incentivises precisely such behaviour" (paragraph 39(c)).
"We have anecdotal evidence from our services that Crisis clients have struggled to find private rented sector accommodation because landlords would not accept them without a British passport. This includes people from the Windrush generation, even those who have naturalisation documents. For example, Crisis has been working with a client from the Windrush generation who was forced to find new accommodation after there was a fire in her house. The client had a right to rent, however new landlords would not accept her as a tenant, because she did not have a British passport…".
"78. … It is… inevitable that a landlord would take a low risk approach.
79. Mr Bates submitted that the primary driver for any landlord will be the amount of rent that can be recovered and that a landlord will be liable for the payment of tax and facilities even during void periods when the property is empty. The rational landlord will seek to avoid the situation and therefore anything that interrupts prompt re-letting will be avoided if possible. He submitted that the rational landlord, faced with a tenant who could move in on the day who has a British passport and one who cannot because they do not have a British passport will inevitably take the one with the British passport."
"In my judgment the evidence, when taken together, strongly showed not only that landlords are discriminating against potential tenants on grounds of nationality and ethnicity but also that they are doing so because of the Scheme. Whilst any individual piece of evidence would not, by itself, be sufficient to lead to this conclusion, the evidence as a whole when taken together powerfully shows that this is the result. In my judgment, there is a consistency through the surveys and arising from the mystery shopper exercises that this is happening and the causal link with the Scheme was not only asserted by the landlords but is a logical consequence of the Scheme for the reasons convincingly submitted by, in particular, Mr Bates on behalf of the RLA."
"In conclusion, I was struck by the consistency of the evidence from the various different sources including the [Joint Council], Shelter, Crisis, the RLA, the report by the Independent Chief Inspector of Borders and Immigration and so forth. It is a short step to conclude that such discrimination is as a result of the Scheme when the landlords say so and when it is logical for them so to act for the reasons cogently set out by Mr Bates on behalf of the RLA. The extent of the discrimination is such that it is a short further step to conclude that this is having a real effect on the ability of those in the discriminated classes to obtain accommodation, either because they cannot get such accommodation at all or because it is taking significantly longer for them to secure accommodation. It seems to me that the anecdotal case referred to by Mr Downie is likely to be a typical example of the effect of the Scheme and, in so far as I have described the two conclusions above as short steps, they are ones which I am prepared to, and do, take."
i) Whilst the Secretary of State's October 2015 survey was indeed small, the Ministry of Housing's 2018 survey (which suggested discrimination, but at a lower level than suggested by the surveys upon which the Joint Council rely) was by far the largest (see paragraph 43 above).
ii) The report by the Independent Chief Inspector of Borders and Immigration did not deal with this issue – he was primarily concerned with absence of appropriate monitoring, to which I will return (see paragraphs 143 and following below).
"In considering the question of 'ambit', the starting point must be what is alleged to be happening as a result of the Scheme. This is that, to put it shortly, those with a perfect right to rent are being discriminated against in their quest for a property to rent on grounds of nationality or race. However, this does not make it impossible for those in the category of those discriminated against to get housing: at its highest, the evidence establishes that they will find it harder, in other words, it will take them longer. Nevertheless, I am asked to draw an inference that, given the scale of discrimination, there will be some who have been unable to find accommodation at all, or for such a long period that their family life has been interfered with. For the purposes of considering the ambit of article 8, I am prepared to draw that inference."
i) Evidence from the Joint Council (and, to an extent, Shelter) that some landlords discriminated against potential tenants on grounds of nationality and/or race in any event (see paragraphs 30, 35 and 74 above).
ii) Uncontested evidence that, prior to the Scheme being in place, 70% of landlords already carried out and recorded identity document checks on those to whom they rented property, and 40% checked a passport (see paragraph 8 above).
iii) Uncontested evidence as to the numbers of those who might be the subject of discrimination, to the effect that most potential private sector tenants will have a British or EU/EEA passport (or be entitled to such a British passport) and the vast majority will be able to satisfy the prescribed requirements by producing a single document (see paragraph 17 above).
iv) So far as housing is concerned, the position of those the object of such discrimination. This evidence was not directly before Martin Spencer J, but is the subject of a helpful agreed note before us. Such persons will, of course, be non-disqualified persons for the purposes of the Scheme; and therefore, if they are unintentionally homeless, they will be able to obtain assistance under Part VII of the Housing Act 1996 if they are eligible (i.e. they are a refugee, a person habitually resident with indefinite leave to remain, a person with limited leave to remain not subject to a condition requiring him to maintain and accommodate himself and his dependents without recourse to public funds, or a person not subject to immigration control) and have a priority need (such as households with children, a pregnant woman or a person vulnerable on grounds of, e.g., old age, mental illness or physical disability). If ineligible for support under the Housing Act, (a) households with dependent children may be eligible for assistance under section 17 of the Children Act 1989 if one or more of the children are "in need" (e.g. if they are homeless), (b) single or childless couples may be entitled to assistance under the Care Act 2014, but they will only be accommodated if their need for care and support cannot be met by the local authority without the authority also providing accommodation and (c) persons who are believed to be the victims of trafficking or modern slavery who have received a reasonable grounds decision will be entitled to secure accommodation lasting until the later of a negative conclusive grounds decision or at least 45 days after any positive conclusive grounds decision.
Ground 1: Ambit
"The Court recalls that article 14 complements the other substantive provisions of the [ECHR]. It has no independent existence since it has effect solely in relation to the 'enjoyment of the rights and freedoms' safeguarded by those provisions…. The application of article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the [ECHR]. It is necessary but it is also sufficient for the facts of the case to fall 'within the ambit' of one or more of the [ECHR] articles…".
The formulation of the requirement that the facts of the case fall "within the ambit" of one or more of the substantive rights set out in the ECHR has been generally adopted (see, e.g., Ghaidan v Godin-Mendoza  UKHL 30;  AC 557 at  per Lord Nicholls of Birkenhead).
"It is fair to say that the English courts have made rather heavy weather of the ambit point, particularly in connection with article 8, because of its broad and ill-defined scope".
In my respectful view, our courts have laboured over European authorities in an attempt to identify a set of rules for the definition of "ambit" of substantive rights in this context which can be applied in the case before them and, indeed, generally; whilst, as on other issues, the ECtHR has taken a relaxed and loose approach to the concept which makes such close and comprehensive analysis difficult if not impossible.
"There are numerous Strasbourg authorities to that effect, in which the positive measure is described as a 'modality' of the right conferred by the substantive provision of the Convention."
Whilst the term is not found in the Strasbourg cases themselves, since Smith, such circumstances have been referred to as "positive modality cases", as they were in this case.
"Although article 8 does not give anyone the right to a home, in my judgment 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. Where 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. If the Government's arguments were correct, a law could be passed which enacted a rule that landlords may only rent to white, British nationals and this would not engage article 8 and therefore not offend against the [ECHR] because article 8 does not give a right to a home, and this would not be a positive modality case. That cannot be right."
i) Article 8 expressly grants an individual the "right to respect for… his home" (emphasis added). Therefore, whilst a requirement for a person to move out of a particular dwelling that is his home may interfere with the article 8 rights of him and/or his family, it is well-established that article 8 does not in terms give any general right to a home (see, e.g., Chapman (cited at paragraph 26 above) at , and Demopoulos v Turkey (ECtHR Application Nos 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04) (2010) 50 EHRR SE14 at ).
ii) Ms Kaufmann drew the distinction between a positive obligation on the state to provide a home (which she accepts is not within the scope of article 8), and an obligation to refrain from taking a measure which interferes with the ability to find and obtain a home (which, she submits, is afforded by article 8); but, although Martin Spencer J appears to have found some force in this submission, in my view that distinction does not assist Ms Kaufmann in this context. Because there is no right to a home, leaving aside for the moment any possible discrimination, there is nothing to prevent a state imposing general restrictions on the ability to find and obtain a home. Sidabras v Lithuania (ECtHR Application Nos 55480/00 and 59330/00) (2006) 42 EHRR 6 (which concerned a ban on former members of the Lithuanian branch of the KGB applying for any public-sector and many private-sector posts) does not support Ms Kaufmann here, because, having found a breach of article 14 read with article 8, the ECtHR declined to consider whether there had been a violation of article 8 taken on its own (see ).
iii) I deal with the judge's findings in relation to the effects of the Scheme on those against whom discrimination is alleged above (see paragraphs 70 and following, especially paragraph 77); but it is clear that, where the judge said at  of his judgment, that the scale of discrimination meant that "their family life had been interfered with", he was clearly not accepting that it fell within the scope of article 8, a proposition he specifically rejected at .
iv) Ms Kaufmann relied upon the Government's acceptance that the Scheme engaged article 8 in paragraph 99 of the section 19(1) memorandum (quoted at paragraph 26 above), which appeared to recognise that the restriction of occupation of premises engaged article 8 as well as article 14. However, as I have explained, that memorandum only considered the human rights implications for irregular immigrants (who are more likely to find themselves homeless if not allowed to rent accommodation in the private sector); and, in any event, whether the Scheme is within or outside the scope of article 8 is a matter of law for the court.
"In such cases there would be a violation of a guaranteed right or freedom as it is proclaimed by the relevant article read in conjunction with article 14. It is as though the latter formed an integral part of each of the articles laying down rights and freedoms. No distinctions should be made in this respect according to the nature of these rights and freedoms and of their correlative obligations, and for instance as to whether the respect due to the right concerned implies positive action or mere abstention. This is, moreover, clearly shown by the very general nature of the terms employed in article 14: 'the enjoyment of the rights and freedoms set forth in this Convention shall be secured'."
"The Court has said on many occasions that article 14 comes into play whenever "the subject-matter of the disadvantage… constitutes one of the modalities of the exercise of a right guaranteed", or the measures complained of are 'linked to the exercise of a right guaranteed'".
"The central question which arises is what constitutes 'the ambit' of one of the substantive articles, in this case article 4. It has been argued that 'even the most tenuous links with another provision in the Convention will suffice' for article 14 to be engaged (see Grosz, Beatson and Duffy, The 1998 Act and the European Convention (Sweet & Maxwell, 2000) at paragraph C14-10) Even if this may be seen as going too far, it is indisputable that a wide interpretation has consistently been given by the Court to the term 'within the ambit'. Thus, according to the constant case law of the Court, the application of article 14 not only does not presuppose the violation of one of the substantive Convention rights or a direct interference with the exercise of such right, but it does not even require that the discriminatory treatment of which complaint is made falls within the four corners of the individual rights guaranteed by the article. This is best illustrated by the fact that article 14 has been held to cover not only the enjoyment of the rights that states are obliged to safeguard under the Convention but also those rights and freedoms that a state has chosen to guarantee, even if in doing so it goes beyond the requirements of the Convention. This would indicate in my view that the 'ambit' of an article for this purpose must be given a significantly wider meaning than the 'scope' of the particular rights defined in the article itself. Thus, in the specific context of article 4 of the Convention, the fact that work or service falling within the definition of 'normal civic obligations' in paragraph 3 are expressly excluded from the scope of the right guaranteed by paragraph 2 of that article, in no sense means that they are also excluded from the ambit of the article seen as a whole."
That emphasises that "ambit" must be widely construed, an uncontroversial proposition; but, more particularly, it uses positive modality cases as a mere non-exhaustive illustration of that width. Both of those points are also to be found in the Master of the Rolls' judgment in Smith at .
"The impugned legislation in this case obviously affected the home and family life of the applicant and her son, as it impacted upon their eligibility for assistance in finding accommodation when they were threatened with homelessness."
"… The link here is said to be home and family life. There is no enshrined right to a physical home; the right is to the enjoyment of a family life. However, this can, in reality, only be enjoyed in settled accommodation. Accordingly, I am satisfied there is a sufficient link."
Ground 4: Justification
"(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
(2) whether the measure is rationally connected to the objective;
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
(4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."
In this case, it is common ground that limbs (1), (2) and (3) are satisfied, the legitimate objective of the statutory provisions being to support a coherent immigration system in the public interest, the Scheme being a means rationally connected to that objective, and there is no less intrusive measure that could have been used that would not have unacceptably compromised the achievement of that objective.
"This court has explained that an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or most cases, the legislation itself will not be incompatible with Convention rights (R (Bibi) v Secretary of State for the Home Department  UKSC 68;  1 WLR 5055 at  and  per Baroness Hale, at  per Lord Hodge)."
In that case, the argument that the provision for a named person service in Part 4 of the Children and Young People (Scotland) Act 2014 gave rise to a disproportionate interference with the article 8 rights of children and parents failed because "it cannot be said that its operation will necessarily give rise to disproportionate interference in all cases" (see -).
"The [claimants] have set themselves a difficult task. It may well be possible to show that the application of the rule in an individual case is incompatible with the Convention rights of a British partner…. It is much harder to show that the rule itself is inevitably unlawful, whether under the Human Rights Act 1998 or at common law…".
Whilst finding that the rule, in the light of the then-current guidance, was likely to be incompatible with the ECHR rights of a number of sponsors, she concluded (at ):
"I would not strike down the rule or declare it void. It will not be an unjustified interference with article 8 rights in all cases. It is capable of being operated in a manner which is compatible with the Convention rights. Hence the appellants must be denied the remedy they seek."
Lord Hodge (with whom Lord Hughes agreed) put it thus:
"… I think that there may be a number of cases in which the operation of the rule in terms of the current guidance will not strike a fair balance. But there may also be cases in which it will. The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases… As a result, the appellants fail to show that the rule itself is an unjustifiable interference with article 8 rights."
Therefore, although some of these observations speak in terms of remedy, it is clear that all of the members of the court (see Lord Neuberger of Abbotsbury PSC at ) held that legislation will not be unjustified (and, so, not unlawful) unless it is incapable of being operated in a proportionate way in all or nearly all cases.
"I conclude that there is Strasbourg authority testing the aim and the public interest by asking whether it was manifestly unreasonable, but the approach in Strasbourg to at least the fourth stage involves asking simply whether, weighing all relevant factors, the measure adopted achieves a fair or proportionate balance between the public interest being promoted and the other interests involved. The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislature's decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of 'manifest unreasonableness'. In this connection, it is important that, at the fourth stage of the Convention analysis, all relevant interests fall to be weighed and balanced. That means not merely public, but also all relevant private interests. The court may be especially well placed itself to evaluate the latter interests, which may not always have been fully or appropriately taken into account by the primary decision-maker."
"For the reasons submitted by Miss Kaufmann…, which I accept, I have come to the firm conclusion that the [Secretary of State] has failed to justify the Scheme, indeed [she] has not come close to doing so. On the basis that the first question for the court to decide is whether Parliament's policy, accorded all due respect, is manifestly without reasonable foundation, I so find. On that basis, there is no balancing of competing interests to be performed. However, even if I am wrong about that, I would conclude that, in the circumstances of this case, Parliament's policy has been outweighed by its potential for race discrimination. As I have found, the measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect as shown by the evidence [before me]. Even if the Scheme had been shown to be efficacious in playing its part in the control of immigration, I would have found that this was significantly outweighed by the discriminatory effect. But the nail in the coffin of justification is that, on the evidence I have seen, the Scheme has had little or no effect and, as Miss Kaufmann submitted, the [Secretary of State] has put in place no reliable system for evaluating the efficacy of the Scheme…".
"Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is 'in the public interest'. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. Here, as in other fields to which the safeguards of the [ECHR] extend, the national authorities accordingly enjoy a certain margin of appreciation.
Furthermore, the notion of 'public interest' is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is '[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]in the public interest' unless that judgment be manifestly without reasonable foundation. In other words, although the Court cannot substitute its own assessment for that of the national authorities, it is bound to review the contested measures under article 1 of Protocol No 1 and, in so doing, to make an inquiry into the facts with reference to which the national authorities acted."
It is important to note that (i) whilst raising issues concerning social and economic policies, James was not a welfare benefits case, and (ii) the "manifestly without reasonable foundation test" was seen as emerging from the margin of appreciation afforded to democratically-elected and democratically-accountable national authorities in implementing social and economic policies.
"It seems clear from Stec… that the normal strict test for justification of sex discrimination in the enjoyment of Convention rights gives way to the 'manifestly without reasonable foundation' test in the context of state benefits."
"How does the criterion of whether the adverse treatment was manifestly without reasonable foundation fit together with the burden on the state to establish justification…? For the phraseology of the criterion demonstrates that it is something for the complainant, rather than for the state, to establish. The rationalisation has to be that, when the state puts forward its reasons for having countenanced the adverse treatment, it establishes justification for it unless the complainant demonstrates that it was manifestly without reasonable foundation. But reference in this context to any burden, in particular to a burden of proof, is more theoretical than real. The court will proactively examine whether the foundation is reasonable; and it is fanciful to contemplate its concluding that, although the state had failed to persuade the court that it was reasonable, the claim failed because the complainant had failed to persuade the court that it was manifestly unreasonable."
i) Recently, in JD and A v United Kingdom (ECtHR Applications Nos 32949/17 and 34614/17) (24 October 2019) (another "bedroom tax" case) at , the ECtHR said that, whilst there is a wide margin of appreciation in the context of general measures of economic or social policy, such measures must not violate the prohibition of discrimination as set out in article 14 and must comply with the requirement for proportionality. The court continued:"Hence, in that context the Court has limited its acceptance to respect the legislature's policy choice as not 'manifestly without reasonable foundation' to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct inequality…".
ii) We were not referred to any case in our domestic law where the criterion of manifestly without reasonable foundation has been considered (let alone applied) in the context of the consideration of a legislative or executive measure other than in the field of welfare benefits.
iii) Whilst he did not restrict his observations to welfare benefit cases, in SG, Lord Reed did add this rider (at ): "… controversial issues of social and economic policy, with major implications for public expenditure"; and, in DA, Lord Wilson said (at ) that the test applied "at any rate in relation to the Government's need to justify what would otherwise be a discriminatory effect of a rule governing entitlement to welfare benefits…".
i) Insofar as JD and A differs from the jurisprudence in the Supreme Court cases to which I have referred, we are bound by the latter.
ii) The manifestly without reasonable foundation criterion as used domestically derives from the ECtHR case of James, a non-welfare benefits case (see paragraph 127 above).
iii) None of the domestic cases expressly states that the application of the manifestly without reasonable foundation criterion only applies in the context of welfare benefits, and does not apply generally to a measure implementing economic or social policy. Some either assume that it applies generally to such measures (see, e.g., Langford v Secretary of State for Defence  EWCA Civ 1271;  Pens LR 21 at  (a case concerning the armed forces pension scheme)) or otherwise accept (at least, obiter) that it applies (see, e.g., R (Turley) v Wandsworth London Borough Council  EWCA Civ 189;  HLR 21 at  per Underhill LJ, and Simawi v Mayor and Burgesses of the London Borough of Haringey  EWCA Civ 1770 at - per Lewison LJ (both social housing cases). See also, now, R (Drexler) v Leicestershire County Council  EWCA Civ 502, referred to below at paragraph 134).
iv) Welfare benefits, of course, comprise an area of policy in which both economic and social considerations feature very large. However, there is no apparent logic or rationale for restricting the socio-economic policy areas in which Parliament and the executive, as democratically-responsible bodies, are uniquely qualified to assess the public interest as against other interests, to those of welfare benefits. There are other sensitive areas, such as social housing and immigration, in which it may equally be said that they are the most appropriate assessors of what is in the public interest and whether the adverse impacts of any proposed or actual measure are proportionate to the benefits in the public interest.
"The 'area of judgment' [afforded to an arm of Government] depends upon the nature of the ground on which the difference in treatment is significantly based. If it is based on (e.g.) race, nationality, gender, religion or sexual orientation, then a reviewing court will look, with especial intensity, for particularly convincing and weighty reasons to justify that treatment. But the area of judgment is also dependent upon other factors, such as the objective of the measure: in certain areas,… democratically-elected or -accountable branches of government are better placed to determine whether something is in the public interest and, if so, the weight to be accorded to that factor in the public interest. In those areas, the courts will allow the relevant branch of government a greater margin of judgment, dependent upon a whole variety of factors such as the branch of government involved (and, if it is the executive, the extent to which Parliament had control over the measure by (e.g.) the positive or negative resolution procedure), the aims of the measure, and the extent to which the branch of government had those aims in mind at the time the measure was introduced.… [A]s well as affecting the area of judgment allowed to the branch of government introducing the measure, for essentially the same reasons, these matters also bear upon the appropriate intensity of review by any reviewing court."
87. … [T]here are compelling reasons for according the full area of judgment allowed to the UK under the [ECHR] in matters of social and economic policy to the legislature and the executive. Within the UK's constitutional arrangements, the democratically elected branches of government are in principle better placed than the courts to decide what is in the public interest in such matters. Those branches of government are in a position to rank and decide among competing claims to public money, which a court adjudicating on a particular claim has neither the information nor the authority to do. In making such decisions, the legislature and the executive are also able and institutionally designed to take account of and respond to the views, interests and experiences of all citizens and sections of society in a way that courts are not. Above all, precisely because decisions made by Parliament and the executive on what is in the public interest on social or economic grounds are the product of a political process in which all are able to participate, those decisions carry a democratic legitimacy which the judgment of a court on such an issue does not have. For such reasons, in judging whether a difference in treatment is justified, it is now firmly established that the courts of this country will likewise respect a choice made by the legislature or executive in a matter of social or economic policy unless it is 'manifestly without reasonable foundation'.
89. Although it is not immediately obvious how the 'manifestly without reasonable foundation' test relates to the assessment of proportionality that the court must undertake, the explanation may be that the court is required to ask whether the difference in treatment is manifestly disproportionate to a legitimate aim. This would accord with the statement of the European Court in Blecic v Croatia (2005) 41 EHRR 13, para 65, that it will accept the judgment of the domestic authorities in socio-economic matters 'unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued' (emphasis added). It also reflects how the Supreme Court applied the test in the recent case of In re McLaughlin  UKSC 48;  1 WLR 4250, at - (Baroness Hale) and  (Lord Hodge)".
i) The Scheme is just one part of a set of measures designed collectively to deter illegal immigration by making various facilities and services (including employment and NHS services, as well as accommodation) unavailable to irregular immigrants.
ii) The evidence is that private sector accommodation has generally been made unavailable to them.
iii) The logic, reflected in the Directive, is that this will discourage illegal immigration, as well as making more privately rented accommodation available to those who are entitled to be present in the UK.
iv) The precise impact of the Scheme is very difficult to quantify, and it is simplistic simply to correlate actual removals of those who have come to the attention of the immigration authorities with "success" of the Scheme in its aim: the number of individuals who are deterred from coming to or staying in the UK as a result of the Scheme is unknown and unknowable, and in any event it is the deterrence of the whole platform of measures that is relevant.
v) If only 300 persons are deterred, the Scheme would have a financial benefit for the UK.
vi) Whether the Scheme has been effective is difficult, if not impossible, to verify empirically, and is essentially a matter of judgment for Parliament.
i) The Scheme does not intend, encourage or directly create discrimination. Indeed, far from it. The discrimination is entirely coincidental, in that the measure does not unlawfully discriminate against the target group but only collaterally because, in implementing the Scheme, as a result of the checks required by the Scheme and the possible sanctions for letting to irregular immigrants, landlords engage in direct discrimination on grounds of nationality; and section 33 and the Discrimination Code of Practice clearly recognise and seek to address that discrimination by landlords.
ii) Although the Scheme requires them to perform checks on whether potential tenants are disqualified from occupying premises under an RTA (because they are irregular immigrants), that does not make landlords agents of the state for these purposes: they engage in discrimination in implementing a statutory scheme as private citizens (cf cases such as DH and R (European Roma Rights Centre) v Immigration Officer at Prague Airport  UKHL 55;  2 AC 1, in which officers of the state operated a statutory scheme in a discriminatory manner). Whilst, speaking for myself, I am prepared to accept that a statutory scheme may be discriminatory because it results in discrimination by private citizens in its implementation, that is subject to (i) the (very substantial) caveat that the operation of the scheme must give rise to disproportionate interference in all cases (see paragraph 116-119 above) and (ii) in any event, the fact that the discrimination arises from the operation of a statutory scheme by private individuals is relevant to the justification balancing exercise.
iii) Whilst I do not suggest that this is a point of any great force, although the evidence is that, in respect of potential tenants who do not have a British passport, landlords effectively use ethnic proxies for nationality, the primary ground of discrimination is nationality not race.
iv) As Humphreys confirms (quoted at paragraph 129 above), even where discrimination is on the basis of a core attribute such as sex or race, great weight still has to be afforded to the assessment of Parliament in respect of a measure which implements economic or social policy, and its assessment that such discrimination is proportionate to the legitimate aim of the measure.
i) As I have described, the administration involved is not burdensome: it requires the checking and copying of one (or, at most, two) identity documents, estimated to take 20 minutes or so, albeit in respect of all potential occupiers and on possibly multiple occasions for those without permanent leave to remain. For those without documents to which the Landlord Checking Scheme applies, it requires a check which will take no more than two days.
ii) Employers have similar obligations in respect of employees, and appear to cope without difficulty and apparently without discrimination. Ms Kaufmann sought to distinguish the profiles of landlords and employers, but it is difficult to do so without evidence: whilst the evidence is that many landlords have only one property, there are many employers with one or only a few employees.
iii) The evidence is that many – most – landlords comply with the administrative requirements without discriminating. As I have said, it is unknown why all cannot do so. Those who do not comply not only engage in unlawful discrimination contrary to the Equality Act 2010, they have an unfair commercial advantage over the majority who do.
iv) Enforcement of the Scheme, and the Equality Act obligations, is essentially also a matter for Parliament. Ms Kaufmann submits that, compared with the potential sanctions for letting to irregular immigrants, sanctions for breaching the duty not to discriminate under the Equality Act are ineffective: a "rational" landlord will act defensively, and prefer to favour potential tenants with British passports (even if discriminatory) because it is very unlikely that any action will be taken in respect of the discrimination. However, Parliament has determined that the Equality Act obligations are enforceable through the county court. If individual potential tenants cannot realistically take such proceedings, the Commission is able to step in.
Grounds 5 and 6: Relief
Lord Justice Henderson :
Lord Justice Davis :
"The law itself is not to blame for individual shortcomings which it does its best to prevent."
"The more seriously and directly the discriminatory provision or conduct impinge upon the values underlying the particular substantive article, the more readily it will be regarded as within the ambit of that article: and vice versa."
And as Lord Walker confirmed in - of his judgment in that case, not every act of discrimination is within the ambit of article 8 for the purposes of article 14. I agree.