Even amidst the lockdown, the law courts carry on their business. The Court of Appeal has ruled on a very important legal challenge to a core element of the UK Government’s ‘hostile environment’ approach to immigration control, the ‘right to rent’ rules that require private landlords to check the immigration status of potential tenants before letting to them. Having suffered a damaging reverse in the High Court over the rules in 2019, the Government has now won in the Court of Appeal, which issued its judgment on 21 April.[i]
The Hostile Environment: a recap
The hostile environment is a strange beast, managing simultaneously to be one of the most popular, but also one of the least popular, Government policies. How can it be both?
Encompassing a range of measures spanning over 20 years, brought in by different political flavours of UK government, the hostile environment seeks to respond to a fundamental challenge posed by the UK approach to migration. The UK allows in large numbers of people to temporarily visit, study and work, but has no system for ensuring they leave, and no system for keeping track of those who no longer have permission to be here (irregular migrants). So how do you take action against those people if you do not know who, or where, they are?
The ‘hostile environment’ attempts to respond to that challenge. Its main tool for encouraging irregular migrants to leave the UK is to make life difficult for them. It does so by requiring those providing employment, or bank accounts, or private rental property, to check the immigration status of the person they are engaging with. Providers should proceed only if satisfied that they are interacting with someone who has regular immigration status.
In this sense, as we have said before, “the hostile environment is not therefore an adjunct to immigration control; it is immigration control”.[ii] The overarching rationale of the hostile environment can therefore be said to enjoy strong popular support in the sense that the majority of the UK public have consistently said that they want some form of immigration control, and do want to see action taken against those coming to, or living in, the UK who do not have permission to be here.
But at the same time, the presentation of the hostile environment and the harsh reality of its impact has often made it far from popular. Indeed it has elicited considerable criticism from across the spectrum, not only from those sympathetic to the situation of irregular migrants at whom it is targeted, but much more broadly, even from those who view immigration control as a legitimate and important aim.
A key reason for this has been the Home Office’s seemingly wilful indifference to the terrible collateral damage that the hostile environment has caused to some people who were not supposed to have been its target at all, most clearly highlighted by the Windrush scandal. In that case, having not at the time been issued with documentary evidence to prove their regular immigration status in the UK (that they had been granted as citizens of Commonwealth countries who had arrived in the UK prior to 1973), four decades later they were wrongly subjected to the full force and consequences of immigration enforcement designed for those with irregular status.[iii]
The Resistance: challenging right to rent
Challenging national immigration controls is legally difficult, so activists have more broadly seized upon the angle of collateral damage – caused to those who have regular immigration status but find it harder to prove so documents-wise – as an indirect and innovative means to bring this challenge. In the case of the right to rent rules, the legal challenge centres on the consequences of the requirement that private landlords carry out a check on the immigration status of a tenant before they rent them property.
The basis of the legal action brought against the Government by The Joint Council for the Welfare of Immigrants is that the operation of the rules has adverse discriminatory consequences not upon irregular migrants, but on certain categories of people who do have a right to rent, but do not have British passports to prove it. In particular, it is argued, those consequences fall on those who neither have a British passport nor what may be perceived as British ethnic markers such as a British sounding name. The evidence put before the court aims to show that landlords do discriminate against these people by being less likely to rent their property to them. This outcome, it is argued, is a consequence of the administrative burden of the checks placed on landlords, who face being fined if they get the checks wrong.
The ruling of the Court of Appeal is, unsurprisingly, complex, but the main judgment (Hickinbottom LJ and Henderson LJ) in essence finds that, although there is indeed discrimination as a result of the scheme, the degree of discrimination is objectively and reasonably justified in the context of the importance of its legitimate objective.
But it is in the shorter ‘blistering separate judgment’[iv] of Davis LJ that the real fireworks go off for those interested in immigration policy. He points the finger squarely in his view at unlawful behaviour by landlords, not unlawful action by the state, as the source of any discrimination. Indeed, he questions the very logic of the Residential Landlords Association, who have joined the action against the Government, being allowed to attack the scheme on the basis of its own members’ discriminatory conduct.
As far as immigration policy is concerned, Davis LJ goes to the heart of the matter: if the right to rent rules can be successfully challenged in this way, what about the rules requiring employers to carry out similar checks? Indeed, what about any rules that seek to exert immigration control through imposing required checks on immigration status carried out by non-state actors? Anybody required to make such checks could make the same argument; that they are just too burdensome and therefore discrimination will result. And, as he says:
“it goes further. These proceedings necessarily focus on those who, it is said, will be (indirectly, if not directly) discriminated against – viz those with a right to rent but with no British passport and no British attributes such as name. The proceedings, for obvious reasons, are not focused on those who are in fact the direct targets of the Scheme (viz unlawful immigrants with no right to rent). But it is a reasonable inference that these proceedings may be in part collaterally designed to bring down the entire Scheme for all purposes … In fact, if this claim is well-founded then it is extremely hard to see how any such scheme could work.” [v]
In short, while this case may be structured as an attack on the collateral damage resulting from the design of a specific element of the hostile environment, Davis LJ views it as in effect an attack on the core concept of the hostile environment itself.
A New Hope: for constructive engagement
Assuming the appeal court judgment will itself be appealed, it will now fall to the Supreme Court to arbitrate in this matter. This is both good and bad news. On the one hand, it is important that the imbalance of power at play in immigration control is challenged and closely scrutinised by the courts. On the other hand, legal judgments are of their nature designed to judge what is (not) lawful, not to find a compromise which might be workable to both sides.
Those challenging the Government’s hostile environment policies have done an excellent job in publicly holding the Government to account for the consequences of those policies. But they have, perhaps understandably, been less focused on setting out what, if any, forms of in-country immigration control might be acceptable to them. If that is because the answer is “none”, advocates of that position should explain what that means in terms of the practical immigration control concerns that the hostile environment is seeking to address. But in general the groups challenging the hostile environment do not see it as their role to do this.
Regardless of the final outcome of the current legal battle, one cannot help thinking that a topic of such complexity and fundamental importance as this would ideally be resolved in a different way and forum. Whatever your view of the hostile environment approach, that approach matters because it is the very basis of in-country immigration control in the UK. If it is to be struck down by the courts what would replace it?
There is a valuable debate to be had on that question, but it is not taking place, largely because migrants’ rights advocates and the Home Office have developed a relationship that brings to mind that of the Rebel Alliance and the Galactic Empire. Explosive clashes between the two sides, in court and elsewhere, might make good box office entertainment, but are an imperfect way to develop better public policy. If, notwithstanding the significant challenges, both sides could find it within themselves to develop a working relationship based a little more on constructive engagement, Britain might just end up with a fairer, better immigration system.
[i]  EWCA Civ 542 https://www.bailii.org/ew/cases/EWCA/Civ/2020/542.html.
[ii] Jonathan Thomas, ‘Politicians aren’t talking about … what should replace the hostile environment for immigrants’ (Social Market Foundation) 9 December 2019 https://www.smf.co.uk/politicians-arent-talking-about-what-should-replace-the-hostile-environment/.
[iii] HM Government ‘Windrush Lessons Learned Review’, Independent Review by Wendy Williams, March 2020 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876336/6.5577_HO_Windrush_Lessons_Learned_Review_LoResFinal.pdf.
[iv] CJ McKinney, ‘Government wins Right to Rent appeal’, (Freedom of Movement, 21 April 2020) https://www.freemovement.org.uk/government-wins-right-to-rent-appeal/.
[v] Davis LJ, para 162 of  EWCA Civ 542https://www.bailii.org/ew/cases/EWCA/Civ/2020/542.html.