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Overview

This briefing provides supplementary evidence to our briefing of 25 March 2020, which was submitted to the Committee and can also be found here.


It provides brief additional evidence on:

  1. The Court of Appeal’s judgment in the Right to Rent case, confirming that it causes racial discrimination in the housing market and the government’s disappointing response;
  2. b. The Minimum Income Requirement for spouse visas, the subject being touched upon during the oral evidence session of 21 April 2020;

Right to Rent

The Court of Appeal has allowed the government’s appeal in the right to rent case. Last year the High Court had found that the government’s scheme requiring landlords to verify the immigration status of their tenants violated human rights law because it caused racial discrimination. The majority in the Court of Appeal found:

  1. The High Court was correct to say the scheme caused racial discrimination – “I have ultimately concluded that he was right to find 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.” (para 66)
  2. Nevertheless, such discrimination was proportionate when balanced against the government’s legitimate legal interest in maintaining immigration controls through the Hostile Environment.

COVID and Right to Rent

We are seeing that COVID is not impacting on all communities equally. BAME communities are being hit harder. No doubt there are many socioeconomic factors involved, but access to safe and decent housing is one of them. This includes access to housing with sufficient space for self-isolation, green space, access to hospitals, access to good and not over-subscribed civic and private amenities, freedom from damp and overcrowding, lower levels of air pollution etc. All these things can make the difference between a family that is able to safely navigate the current crisis, and one that cannot.

Both the High Court and the Court of Appeal have now concluded that the right to rent scheme places ethnic minority British people and foreign nationals at a disadvantage in accessing housing. A significant proportion of landlords are either unwilling or less likely to rent to someone who is not British. Where someone has no passport, some landlords will take into account markers of ethnicity such as skin colour or name to act as a proxy for nationality. We emphasise that these findings were upheld by the majority in the Court of Appeal, although it did take a more conservative view of the level of discrimination, and the consequent impact of the discrimination.

It is an unavoidable conclusion that by restricting their access to the housing market and placing them at a disadvantage against white British people, BAME and foreign nationals will be more likely to be at the back of the queue for safer, more spacious, more desirable housing at any given price point. The right to rent scheme must be suspended immediately. No-one’s level of access to a safe place to live should be affected by their nationality or their race.

Government Reaction to Ruling

We understand that the government will be pleased that the Court of Appeal did not consider the right to rent scheme has violated human rights law. Of course, on our side we are disappointed and we disagree with those aspects of the judgment that went against us. We also consider the Court of Appeal has underestimated the level and the impact of the discrimination it found to have occurred. We are preparing to appeal the judgment, but we do understand that we have not won the legal case yet. However, given the clear finding from two courts now that the right to rent scheme causes racial discrimination, we would have expected some degree of self-reflection from the government. The response has instead been deeply disappointing:

1. 

2. 


The first tweet is misleading and disappointing from a Minister. The Court found that the right to rent scheme does lead to discrimination. It ‘need’ not only in the sense that if all landlords prioritised non-discrimination over and above their own economic interests then the scheme does not mandate that they discriminate. That is not what the court found was actually happening in the real world. The scheme nevertheless causes racial discrimination that would not have occurred if it did not exist. It is hard to express how dispiriting it is, after all the promises around the Windrush Lessons Learned review, to have a government minister expressing ‘delight’ in such a manner, while failing to acknowledge the awful cost to human dignity and safety that is caused and that has been caused by racial discrimination in accessing housing.

The second follows the same line of reasoning, and seems to be part of the Home Office’s new strategy of social media ‘rebuttal’, where it targets reputable NGOs and their complaints against it, and seeks to undermine their credibility by making an irrelevant point. In this case the right to rent scheme not only does currently operate with discrimination, it causes greater levels of discrimination.

This rebuttal strategy was also observed in relation to multiple NGOs asking for a suspension of NHS charging. The Home Office tweeted under each such ask suggesting that the person in question was being misleading because it had already added COVID to the list of exempt diseases. But, of course, the NGOs in question had all signed a letter acknowledging that fact and setting out the reasons why such an exemption was insufficient to protect public health.

What characterises these ‘rebuttals’, is an extremely cynical approach to wording, combined with a seemingly deliberate misunderstanding of the point being made. The government ought to be fully aware of the real complaint in each case, but chooses to answer in a way that is not designed to assist the public in understanding the situation, but rather to undermine the credibility of the messenger, while spreading a line that is itself highly misleading. In the case of NHS charging, it was to distract from a conversation about the deterrent effect of charging, notwithstanding an exemption. In the case of right to rent, it is to draw attention away from the clear finding that the scheme causes racism in the reality in which we all live, while asking us, as Lennon did, to imagine a hypothetical world in which it might not. We do not expect government to always agree with us. We expect it to express its disagreement in good faith and without such propagandising.

Minimum Income Requirement


JCWI has been contacted since the lockdown began in the UK by dozens of people who will now be unable to meet the financial requirements to remain in the country with their partners or families because of the economic impact of the pandemic. Many of these are key workers in front-line roles dealing with the pandemic. Others are in high-risk categories because of underlying health conditions, but feel compelled to continue working when it may not be safe to do so, due to fear that a drop in their income will result in an application for further leave or ILR will be rejected.


The Home Office has yet to issue any clear guidance as to how applications where the income requirement is not met due to the economic impact of the pandemic will be handled. For now the only advice that has been made public is that those whose leave is about to expire and would usually apply in-country, for example those on a spouse/partner visa, should continue to do so in the normal way (rather than, for example, making use of the limited extension scheme, which in any case is due to end on 31 May 2020).


Claire* is a British citizen, and her husband is a Turkish national living in the UK on a spouse visa. They have lived together in the UK for two years. They have a young child and a new-born baby together. Claire has been on maternity leave, while her husband works to support the family. He has now been furloughed, and they will not meet the Minimum Income Requirement to extend his visa in the autumn. The family have been advised to shield, as Claire and her eldest child suffer from asthma. However, they are extremely concerned about how to meet the MIR, and the family is considering working against government advice in order to bring their income over the threshold. Claire has suffered panic attacks due to the additional stress of having to meet the MIR.


Families where one member has No Recourse to Public Funds are extremely concerned about the economic impact of COVID-19, because of the inability to claim an adequate level of financial support.


Danny* and his wife have been together for 9 years. He is British and she is from Thailand. They moved back to the UK to be together in late 2017. He has been laid off work due to coronavirus, and she is currently unable to work due to sickness, but unable to claim any financial support due to having No Recourse to Public Funds. Danny applied for Universal Credit on 17 April to support them with paying rent. He has been told he won’t receive any financial support until the end of May at the earliest. They have not been told how much they are entitled to, but since only one member of the household is allowed to access benefits, it is likely to be around £102 per week. For the moment, they are using credit cards to buy groceries and borrowing money from relatives to get by. They are both suffering from stress and anxiety because of the situation.


People with No Recourse to Public Funds who apply to have that restriction lifted because they have been rendered destitute are automatically moved from the 5-year to the 10-year route to settlement. Their previous residence in the country does not count towards those 10 years, so they are forced to start all over again, even if they’ve lived here for several years. For someone who entered the UK on a 2.5-year spouse visa, for example, this will mean having to apply to extend that leave 3 times, rather than once, before being eligible to apply for ILR. Currently, this would mean an individual paying £11,311 just in visa fees and health surcharge from first entry to obtaining ILR, rather than £6,045, or an extra £5,266. It would also mean having a less secure immigration status for an additional 5 years.

JCWI is contacted on a regular basis by people who have not been able to apply to extend their visas because of an inability to pay visa fees. Many people in this position go on to fall out of status, and become vulnerable to the Hostile Environment, because of an inability to pay visa fees. This will become an even greater concern due to the economic impact that the pandemic will have on families, meaning huge numbers of families may be at risk of falling out of status. Lifting NRPF restrictions completely is the only way to ensure that families in this position do not have to choose between becoming destitute now and being unable to maintain their immigration status years down the line.