A key pillar of the hostile environment has just been backed by the appeal court | Hugh Muir | Opinion

Last week, with the wider world preoccupied with matters of death and survival, the appeal court addressed the unfairness of the government’s “hostile environment” right to rent scheme. The high court last year ruled the scheme – which obliges private landlords to check the immigration status of tenants and prospective tenants, with the risk of five years in prison if they get it wrong – to be racially discriminatory.

Whatever its intention, what the law did in practice was encourage many landlords to withhold places to live from anyone who carried the potential for trouble under the act. The high court had ruled the measure unfair, saying it had “little to no effect” on controlling immigration and that it flew in the face of human rights laws guaranteeing freedom from discrimination. That seemed sensible.

Enter the appeal court, considering a cry of foul from a government that talks of the hostile environment as if it were a relic of the past while simultaneously keeping its strictures in place. The appeal court accepted that, under this law, some landlords did indeed discriminate against would-be tenants who had no British passport – as is the case with 17% of British nationals in England and Wales. That in itself was a victory for those such as the Joint Council for the Welfare of Immigrants (JCWI) who opposed the scheme. But the appeal court judges dismissed the view of the high court and ruled the scheme, for all its problems, “justified” and “proportionate”. They used legalese language but, basically, their conclusion was: “Hey, bad stuff happens.”

No law is perfect. But how can it be right to legally bolster a scheme so palpably open to abuse against such a significant section of lawfully entitled residents and British citizens? Are they, despite human rights law that is supposed to protect them, to be seen as collateral damage by ministers stuck in the mindset that caused the Windrush scandal? Indeed the very people affected by that scandal, those unable to fully document their legitimate status, are the ones who could be made to suffer all over again when landlords deny them a place to live.

The judges took the literal view that the legislation as written does not instruct landlords to discriminate. “Discrimination is not sanctioned under this scheme,” they said. They were comforted by Home Office assurances that the checks landlords must take – sight of variables such as passports, ID cards, driving licences and letters from government departments – were not excessively onerous, and that landlords were told of the “need to treat all tenants equally”. Meanwhile, they were told, empathetic officials helped vulnerable people meet the requirements. And to all that, the judges nodded agreement.

But would any reasonable person, knowing the Home Office’s hostile environment record, accept these as realistic safeguards against discrimination?

In fact the judgment noted evidence provided by the Residential Landords Association indicating that under this law, 5-6% of landlords discriminated against potential tenants who did not have British passports – and that the “evidence of likely intent produces a figure of over 40%”. But hey, bad stuff happens.

Migrants legitimately seeking homes may suffer discrimination, judges said. But the discrimination is “entirely coincidental”. The government and its legislation can’t be blamed if people don’t obey. Yet that is, of course, to dismiss the impact of discrimination on those who bear the brunt of it. And, as we know, people will often abuse bad law.

And so ministers have their victory. As things stand, a bit of discrimination is acceptable. “I am delighted,” crowed the junior immigration minister Chris Philp.

Thankfully, our system still has safeguards. The JCWI says it will refer the matter to the supreme court. So there is still a chance to draw a line in the sand, and to declare there is no level of acceptable discrimination.

Yes, bad stuff happens. But it’s no basis for public policy.

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