The Joint Council for the Welfare of Immigrants (JCWI) says the “right to rent” scheme, which requires landlords in England to check the immigration status of their tenants, encourages “systematic discrimination” against ethnic minorities and people without British passports.
A judicial review application hearing will take place on Wednesday and is expected to receive backing from a number of charities, human rights groups, MPs and peers.
There has been renewed scrutiny of the policy in the wake of the Windrush scandal, which – as well as cases of wrongful detention, denial of benefits and healthcare – has highlighted instances of people who had a right to live and work in the UK being denied rental accommodation.
Nearly half of landlords who responded to recent surveys by the JCWI and the Residential Landlords Association (RLA) said they were now less likely to rent to people who did not have a UK passport, regardless of whether they were in the UK legally, or were UK citizens.
Speaking to Sky News, Chai Patel, legal policy director for the JCWI, said the judicial review case brought by the council would argue that the policy breached discrimination laws.
“The problem with this scheme isn’t that individual landlords are necessarily racist, it’s that the government has put in a place a scheme that incentivises systemic discrimination against certain groups,” he said.
“That contravenes the Human Rights Act and the European Convention of Human Rights, which prohibits that kind of discrimination and prohibits the government from putting in place schemes that encourage it.
“Over a number of years we’ve warned the Home Office about this.
“We’ve also seen the chief inspector of borders and immigration recently put out a report warning the Home Office there was no good evidence this scheme was working, and recommending a full evaluation of the scheme, which the Home Office has rejected”.
Leona Leung, a letting agent and landlord in Birmingham, told Sky News she believed the policy expected too much of landlords, who do not have sufficient training or experience.
“We are not border agents, we are not in charge of immigration, we are good landlords,” she said.
Although the government does provide an online checking system and guidance, Ms Leung said she was not surprised by research suggesting many were choosing to “play it safe”.
“If you give us a passport, if it’s not British, most landlords don’t know where the passports are coming from, you don’t know if it’s real or fake,” she explained.
“When I speak to landlords, a lot them say they are scared because they don’t want penalties or fines.”
In response to the Windrush scandal, the Home Office issued new guidance to landlords on the rights of Commonwealth citizens who arrived in the UK before 1973.
But the RLA has said that without statutory changes to the law, their members will not feel sufficient protection from prosecution.
Policy director David Smith said: “It’s not really altering the situation. It requires landlords to make phone calls to complex and poorly staffed helplines, and the reality is this is something the government should have resolved a long time ago.
“It shouldn’t be up to landlords to go around making phone calls for something that is the government’s fault.”
Immigration Minister Caroline Noakes was warned by the RLA about its concerns about “right to rent” in January, months before the Windrush scandal received widespread attention.
In a letter sent by RLA chairman Alan Ward, seen by Sky News, Ms Noakes was alerted to survey findings showing that 42% of respondents were reluctant to rent to those without a UK passport.
Mr Ward wrote: “This is particularly concerning for the 17% of the usually resident population of England and Wales who, according to census data, do not have a passport.
“We continue to be concerned about the principal of the scheme, especially given that many landlords, faced with the prospect of a criminal conviction, are playing it safe by refusing to rent to anyone without a passport, even if they are UK nationals”.
It is understood the RLA is yet to receive a response to the letter.
A Home Office spokesperson said: “It would be inappropriate to comment on ongoing legal proceedings.”