Right to Rent

It is the role of the Opposition to oppose and the role of the Press to hold those in power to account.

So, putting Brexit aside for once, how have they fared with regard to the Government’s attempts to tackle illegal immigration over the past five years or so?

Last week the High Court ruled on Theresa May’s “Right to rent” policy, which requires landlords to check that they’re not letting out properties to people who shouldn’t be in the country. The judge decided that it had actually caused discrimination, was incompatible with the European Convention on Human Rights, and that there would be a “certainty” of illegality if it were extended from England across the UK. What’s more, it wasn’t even achieving its objective of rooting out illegal immigrants.

The judgment made yesterday’s splash for the Morning Star and the online-only Independent, but was given short shrift by most national newspapers.

It was, perhaps, to be expected that the May-supporting rightwingers with little sympathy for the ECHR would play down the story (the Express ignored it altogether), but surely the Daily Mirror might be expected to capitalise? Not a word.

The Guardian put it way back on page 18. The i and The Times both put it on page 6, the former as a small page lead, the latter as a tiny downpage double. The only paper to return to it today was The Observer, with a leader headlined “Shame on a government that is creating race discrimination”.

This prompted a little research into the history of the policy and how it has been covered by the Press. This is what I found.

In July 2013, at around the time “go home” vans were touring London housing estates urging illegal immigrants to leave the country, Theresa May’s Home Office issued a consultation document on plans to recruit private landlords as enforcement officers for her “hostile environment” strategy.

They would be required to check that prospective tenants were entitled to live in the UK. Not only were they to perform this function unpaid, but if they failed to do so and ended up renting to illegal immigrants, they could be fined.

Various interested parties responded to the consultation, expressing concerns that the policy could lead to illegal discrimination and might contravene the European Convention on Human Rights.

The Government acknowledged the risk of discrimination and emphasised that this would not be tolerated. It said it was confident that the policy complied with the ECHR.
When the consultation process was complete, it reported that 58% of respondents had expressed concerns about possible discrimination, but said that the checks required would be minimal and landlords would be given guidelines and a code of practice.

Parliament passed the necessary legislation in 2014 and a pilot scheme was set up in the West Midlands. Landlords in breach of its provisions could be fined up to £3,000.

This was where the story finally reached the consciousness of our national newspapers’ newsdesks. Local papers and property correspondents had been more on the ball. There were a number of features about what landlords need to do – but stories about the obstacles facing people looking for a home were almost non-existent.

In February 2015, the Joint Council for the Welfare of Immigrants released its first findings on how the policy was working out. Things seem to be going exactly as predicted with landlords avoiding foreigners. The story was reported in the Independent and its baby sister, but nowhere else.

The following May, the Tories were re-elected with a Commons majority and David Cameron announced his intention to roll out the scheme across England.

In August, with political pressure mounting over the Calais Jungle, the Government announced that it was not going to wait for detailed evaluation of the pilot, but would legislate for the roll-out with stiffer provisions. Landlords would be able to evict tenants without a court order, while those who failed to conduct the required checks would risk up to five years in jail.

By now the language had changed. The overwhelming majority of private landlords were individuals with a single buy-to-let property who had been dragooned into service as part of the Government’s solution to illegal immigration. Now “rogue landlords” were the problem.

Maybe there had been a resurgence of Rachmanism that necessitated more draconian penalties and inspired Communities Secretary Greg Clark’s declaration that the Government was “determined to crack down on rogue landlords who make money out of illegal immigration – exploiting vulnerable people and undermining our immigration system”. If there had, the news had not reached the national Press and no minister put forward any evidence to demonstrate that this was the case.

The Guardian splashed on the story and, even with the death of Cilla Black, the decision also found a home in the Mail and Sun. There was no report anywhere of what happened when Clark addressed MPs on the subject (the Monday morning stories were the result of advance briefings), nor of any Opposition reaction.

The following month, the JCWI published a report on the impact of the pilot scheme, entitled “No Passport No Home”. It found that 42% of landlords surveyed said that, because of the scheme, they were less likely to rent to someone without a British passport; 27% said they were reluctant to rent to someone who “appeared foreign”.

The findings went unreported.

In October, the Home Office published its own report on the impact of the pilot. It said it had found “a very small number of potentially discriminatory attitudes” – some landlords had shown a preference for “lower risk” tenants with a local accent. The Home Office research had involved questioning 114 landlords (52 of whom had not taken on new tenants during the pilot) and 68 tenants (most of them students and most of whom had not moved during the pilot).

On the same day, the Government announced that the scheme would be introduced countrywide the following February.

The Independent on Sunday swung into action with a Jane Merrick splash and an Oped by Shadow Home Secretary Andy Burnham in which he expressed the fear that the scheme could become the modern day equivalent of “no dogs, no blacks, no Irish”. 

The Guardian and Times picked up on Burnham the next day.

In February 2016, the JCWI published a further report based on surveys of landlords, letting agents and organisations working with affected groups, coupled with FoI requests, parliamentary questions and a “mystery shopper” exercise involving 1,708 inquiries and 867 landlord responses. 

It concluded that foreigners and BAME people were being discriminated against on the basis of nationality and race. The FoI requests also showed that the Government was not monitoring the scheme to see whether people were suffering discrimination, whether the scheme was achieving its objective in encouraging illegal immigrants to leave the country, or whether it was cost-effective. 

The story did not find a home in any national newspaper, but the following month the European Commissioner for Human Rights expressed disquiet about Britain’s attitude to immigration and alluded to the Right to Rent policy. His words caught the attention of the Guardian and the Mail - one seemed a little chastened, the other defiant.

In May 2017, with the Government planning to extend the scheme across the UK, the JCWI asked Home Secretary Amber Rudd to order a full evaluation of the policy and said it would go to the courts if she declined. It updated its research figures in line with a survey taken in February, in which 51% of landlords now said the scheme would deter them from letting to foreigners. The Guardian and Independent (now online only) were the only papers to report the development.

With the referendum over and interest in immigration waning, there was  little appetite for keeping tabs on the “Right to rent” policy, but it did crop up from time to time over 2017 with updates on the numbers of landlords fined. The Press couldn’t seem to make up its mind whether it was a flop because so few were being fined or an unfair assault on landlords. Few seemed concerned about the plight of would-be tenants who couldn't find a home.

Last spring, the Independent Chief Inspector of Borders and Immigration reviewed the scheme and concluded that it had “yet to demonstrate its worth as a tool to encourage immigration compliance". The Home Office had "failed to co-ordinate, maximise or even measure effectively its use, while at the same time doing little to address the concerns of stakeholders".

The report was one of five inspection reports, all critical of the Government’s immigration strategy, released just before Parliament rose for the Easter recess – and on the same day it was announced that the rapist taxi driver John Warboys was to be given parole.

The Government rejected the inspector’s recommendations and the assessment troubled only the Mail, i and FT.

The story burst into life, however, with the Windrush scandal a couple of weeks later.  Especially when an internal Home Office document from 2015 -  when plans were being made to expand the pilot from the Black Country to the whole of England -  emerged. Two years before anyone knew anything about the Windrush timebomb, officials had warned ministers:

"Some non-UK born older people may have additional difficulties in providing original documentation.  Some may have had their immigration records destroyed. Some will have originally come into the country under old legislation but may have difficulty in evidencing this."

When the JCWI applied for a judicial review of the scheme, the Government argued that it did not fall within the ambit of the ECHR – even though in launching the scheme it had claimed that it was compliant.

The High Court ruled last week that it did.

It also ruled that people were suffering from discrimination because of the scheme. Essentially, it was too much hassle for landlords to bother with all the paperwork in letting their properties to tenants who couldn’t produce a passport to prove they had the right to rent. This was making it difficult for people with a perfect right to live in the UK to find a home.

As Mr Justice Martin Spencer put it in his judgment:

• “The scheme introduced by the Government does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not”;
•  “The State has imposed a scheme of sanctions and penalties for landlords who contravene their obligations and, as demonstrated, landlords have reacted in a logical and wholly predictable way”;
•  “The safeguards used by the Government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective”;
• “The Government cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the scheme”.

The judge accepted that the Government was entitled to take measures to effect its immigration policy – and he noted that it enjoyed public support in this – but that the “right to rent” scheme was not the way to do it. It was incompatible with the ECHR and should be reconsidered. There would not only be a risk, but a certainty of illegality if it were extended to Wales, Scotland and Northern Ireland.

What’s more, it wasn’t even working. Independent research had found that of the 654 people who had been drawn to the Home Office’s attention as a result of the scheme, 31 had been removed from the country. There was nothing to suggest that the remaining 623 were here illegally.

He said:

•   “I have come to the firm conclusion that the defendant (the Home Office) has failed to justify the scheme, indeed it has not come close to doing so”;
• “Parliament’s policy has been outweighed by its potential for race discrimination”;
•  “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;
•  “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”;
• “The nail in the coffin of justification is that the scheme has had little or no effect and the defendant has put in place no reliable system for evaluating the efficacy of the scheme”.

This sounds like a pretty devastating critique of a policy instigated by the woman who is now our Prime Minister – a policy that has been questioned not only by organisations concerned for the people who have to implement it and the people who will be affected by it, but by officials within the very department that dreamt it up and by the border force it is supposed to help.

Yet from the day it was first mooted to the ruling on Friday, coverage in our national newspapers has been at best sporadic and at worst non-existent.

Hardly anyone listed the four litigants in the court case - the JCWI, Liberty, the Residential Landlords Association and the Equality and Human Rights Commission. And none bothered to explain what these organisations were, who they represented and who served on them - not even The Guardian, which named the JCWI as one of five beneficiaries of its 2018 Christmas appeal because of the work it had done to help Windrush victims.

The Mail’s Guy Adams did have a pop at the committee in August 2015; not in the context of Right to Rent stories, but as one of a handful of charities “using YOUR money to sabotage all efforts to rein back immigration”.

The key claimant in this case – JCWI – was a charity with a staff of fewer than 20 and an annual income of well under £1m. It took on the Government on behalf of vulnerable people and won.

But even the David v Goliath element was apparently not interesting enough for our national newspapers.

Of course Chris Grayling’s failings and Brexit are going to be hard to shift from the front pages. Of course, people care more on a Saturday about the cost of their holiday or the weather or Prince Harry.

But shouldn’t they at least be told when the Government is acting illegally?