Half a century ago, the British government made it illegal to refuse housing on the grounds of race. On Friday, the high court ruled that one of its policies was causing racial discrimination in the housing market. The “right to rent” scheme, which requires landlords in England to police the migration status of tenants on pain of heavy fines, or even jail, is a key plank of the hostile environment. Created by Theresa May as home secretary, the approach has outsourced immigration control to public services and private businesses. The noxious effects were soon detected, but it took the Windrush scandal to put them in most people’s sightline. Now comes the damning judgment that the housing aspect is unlawful. The court found that it causes discrimination and ruled it incompatible with human rights law.
The first problem with the hostile environment is the inhumanity engendered towards undocumented migrants in general, who are already vulnerable. The second is the impact on those who have the right to remain, but whose documents or status might not be easily understood – such as some of the Windrush generation. Studies found that between 25% and 43% of landlords were less likely to rent to anyone without a UK passport. The third is the wider effect of such attitudes on British passport holders from the BAME community who may have lived in the UK all their lives. The inhumanity was intentional; online guidance and a code of conduct were never going to eradicate the other problems, as this case has shown. When people who thought their business was renting houses or helping patients are pressed into service as amateur border guards, facing stark penalties if they err on the side of generosity, they will err towards harshness.
The welcome effect of the judgment is to halt right to rent’s rollout to Scotland, Wales and Northern Ireland. The question is whether it ends the scheme. The home office says it is “disappointed”; it has the right to appeal. The judge said he believes that legislators would be “aghast” if they knew its effects. They certainly should be. But the Joint Council for the Welfare of Immigrants, which brought the case, was one of many groups to warn of the problems when the scheme was mooted, and then when it was piloted. The effects were so predictable that Eric Pickles, then the Conservative communities secretary, told David Cameron that “anyone foreign-looking” would find it difficult to rent privately as a result.
The Windrush scandal and challenges to other parts of the hostile environment have already led to the suspension or scrapping of some aspects. Convincing the government to ditch the policy as a whole will be far harder, despite the lack of evidence that it is encouraging undocumented migrants to leave. Being so much Mrs May’s policy, it is likely to survive while she does. And home secretaries, especially when they have eyes on a leadership vacancy that could appear very soon, dread accusations of a more relaxed attitude to illegal migration. Sajid Javid rejected the phrase “hostile environment” when he became home secretary, but has so far retained the approach.
The high court judgment, like the outrage over the treatment of the Windrush generation, shows that there is a political cost to defending it. This will inevitably grow, because the problems will multiply as millions of EU nationals are brought into the system. The moral argument against the hostile environment was evident from the beginning. Now the legal cracks are showing. It should never have been introduced. It must be ended.