On 21 April 2020, the Court of Appeal handed down its judgment in the case of Secretary of State for the Home Department v Joint Council for the Welfare of Immigrants - the so-called “right to rent” case. The Court unanimously agreed that the UK Government’s appeal against the High Court decision of 1 March 2019 should be upheld.
As is now well known, the main question in the case is whether sections 20-37 of the Immigration Act 2014 (the “right to rent” provisions, referred to in the judgment as the “Scheme”) contravene Article 14 of the European Convention on Human Rights (ECHR) when read in conjunction with Article 8 ECHR. In short, “...the validity of the statutory provisions themselves” (Judgment, para. 44) has been placed in question.
Not surprisingly, in light of the grave matter of public importance raised, the Court of Appeal decision was immediately followed by speculation as to whether the case would eventually be referred to the UK Supreme Court. With the possibility of a further appeal in mind, this commentary identifies one particular weakness of the Court of Appeal decision which, to my mind, entirely undermines its force.
First, a brief summary of the reasons the Court of Appeal advanced when reaching its decision. Two of the Appeal Court judges (Davis strongly dissenting at para. 165) agreed with the High Court’s conclusion 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…” (Judgement, para. 66). Also, in line with the High Court decision, all three appeal judges were prepared to accept that the legislative provisions fell within the “ambit” of the Article 8 ECHR right to private and family life - thus engaging Article 14 ECHR - because these “...potential tenants will be unfortunate and take longer than the average time…” (Judgment, para. 77) to secure accommodation. However, the Court of Appeal differed from the High Court in conlcuding that “...the discrimination to which the Scheme gives rise was justified" (Judgment, para. 120). In reaching this conclusion, the Court of Appeal followed a line of cases which determined that, in matters of social and economic policy, courts must defer to the judgement of democratically elected government - unless that judgement is “manifestly without reasonable foundation” (See Judgment, paras. 122-141). To put it another way, unless a government measure is shown to be “manifestly disproportionate to the legitimate end pursued” (Judgment, para. 138), a court cannot interfere with it.
There is no suggestion that the High Court was not fully cognisant of the above principles when coming to its conclusion that the legislative provisions were not objectively justified. On the contrary, by stating that “...the [Secretary of State]...has not come close to…” (Judgment, para. 123) justifying the scheme, the High Court clearly demonstrated that it was appropriately applying the “manifestly without foundation” test.
Ultimately, then, any further appeal may turn on the question of whether the Court of Appeal’s application of the “manifestly without foundation” test, when assessing whether sections 20-37 of the Immigration Act 2014 were objectively justified, is to be preferred over the High Court’s, or vice versa. Two factors work in favour of the High Court. First, as the Court of Appeal itself noted, convention demands that an appeal court “...takes a cautious approach when considering findings of fact (including factual assessments) by the judge below…” (Judgment, para. 66). In this regard, commentators have already observed that the Court of Appeal may have shown itself to be too willing to substitute its findings for that of the High Court’s.
The second point in favour of the High Court is that it quite evidently demonstrates a better understanding of the relation between racisms, rationalities and objective justifications. The Court of Appeal found “troubling” the High Court’s conclusion “...that it was “rational” or “logical” for landlords to discriminate against those without British passports and/or apparent ethnically British attributes such as name" (Judgment, para. 68). It rejects the “...concept of an individual acting “rationally” or “logically” by taking a course of action which... is to his knowledge discriminatory and unlawful” (Judgment, para. 69). However, later in the judgment, the Court found that “[t]he evidence is that many – most – landlords comply with the administrative requirements without discriminating...[t]hose 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" (Judgment, para. 149). Try as I might, I cannot reconcile these statements - since a desire to obtain a commercial advantage by discriminating on racial grounds is an obvious “logical” and " rational” one. More pertinently, it is hard to see how “...the discrimination to which the Scheme gives rise…” (Judgement, para. 120) can be assessed on the basis of whether or not it is “objectively justified” unless it is accepted that discrimination (including racial discrimination) can be defended on logical or rational grounds.
If only because the High Court demonstrated a more sophisticated understanding of the pervasive forms of racism in British society, its assessment that the “right to rent” measures cannot be objectively justified should be reinstated.
Secretary of State for the Home Department v Joint Council for the Welfare of Immigrants  EWCA Civ 542.