R (Goloshvili) v. Secretary of State for the Home Department and Liberty

Notice of Letting to a Disqualified Person.

R (Goloshvili) v. Secretary of State for the Home Department and Liberty [2019] EWHC 614 is a very interesting, recent decision which held that although the service of a Notice of Letting to a Disqualified Person (“NLDP”) under the right to rent scheme was an act of direct discrimination on the grounds of race, the Secretary of State was not liable under the Equality Act 2010.

Commentary from 4-5 Gray’s Inn Square confirms the background.

In 2004 the claimant arrived in the UK as a student from Georgia. In October 2017 she was granted an assured shorthold tenancy of accommodation in Edgware. On 19 October 2017 the landlord contacted the Home Office to request that an NLDP be issued to him. This is because he did not believe that the claimant had a right to rent in the UK. The NLDP was served that day, and the landlord brought possession proceedings relying upon it; which were eventually settled.

The claimant asked the defendant to withdraw the NLDP and permission to rent. He refused. She requested a review. She brought a claim for judicial review against the defendant in respect of the service of the NLDP.

On 24 May 2018 the defendant accepted that the claimant had leave and the following day, the NLDP was withdrawn. She was later granted indefinite leave to remain.

Permission was refused on the papers for the claim because it was academic, the NLDP having been withdrawn, and permission for the human rights argument had already been granted in R(JCWI) v. SSHD and RLA, EHRC and Liberty [2019] EWHC 452 (Admin). That case was successful and a declaration of incompatibility was made.

Permission was granted at an oral hearing to argue that the manner of the service of the NLDP was unlawful in a public law sense, and discrimination under the Equality Act. The claim was heard with the R(JCWI) case.

High Court Decision.

The High Court decision on R (Goloshvili) v. Secretary of State for the Home Department and Liberty, held that the claim had become academic, but the Judge gave his obiter views anyway. He said that the service of the NLDP gave rise to direct discrimination on the basis of nationality and therefore, by reason of section 9 of the Equality Act, race. However, the defendant was not liable because he was exercising functions exercisable by virtue of a relevant enactment; see Sch 3 para 17(2). This is because the Immigration Act 2014 section 33D(2) gave the defendant express authorisation to issue NLDPs.

Although the service of the NLDP was in fact done by the civil penalties compliance team of the Home Office, this counted as the action of the defendant by operation of the Carltona principle, see [1943] 2 All ER 560. Finally, it was said that the defendant had no discretion as to whether to serve the NLDP; and so his actions did not amount to discrimination because of the operation of Sch 23 para 1(1).

The Consequences.

Chambers state that the position of landlords would now seem precarious. If they do not act on an NLDP they risk civil and criminal sanctions; but if they do act, they risk being liable for direct race discrimination under the Equality Act, as well as a possible damages claim.

This commentary was taken directly from the E-Flash service from 4-5 Gray’s Inn Square