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Session 2002 - 03
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Judgments - London Borough of Harrow (Appellants) v. Qazi (FC) (Respondent)


SESSION 2002-03
[2003] UKHL 43
on appeal from: [2001] EWCA Civ 1834




London Borough of Harrow (Appellants)


Qazi (FC) (Respondent)



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hope of Craighead

Lord Millett

Lord Scott of Foscote




London Borough of Harrow (Appellants) v. Qazi (FC) (Respondent)

[2003] UKHL 43


My Lords,

    1. By article 8(1) of the European Convention on Human Rights "Everyone has the right to respect for . . . his home . . .". This appeal concerns the meaning of that provision and its application to the facts of this case.

    2. Those facts are simple. The respondent, Mr Qazi, lived with his then wife Mrs Saman Qazi and their daughter in a two-bedroomed house at 31 Hutton Lane, Harrow Weald, Middlesex. The London Borough of Harrow, the appellants, were (as they still are) freehold owners of the house, and let it to Mr Qazi and Mrs Saman Qazi as joint tenants under a secure tenancy beginning in January 1992. In 1998 Mrs Saman Qazi and their daughter went to live elsewhere, and in February 1999 Mrs Qazi gave the council four weeks' written notice to quit in accordance with the express terms of the tenancy agreement. This notice, it is common ground, had the effect of bringing the tenancy to an end on 22 March 1999. The council informed Mr Qazi that the tenancy had come to an end and invited him, if he wished, to apply for a sole tenancy of the house, making it clear that the application might not succeed. He did apply, but his application was refused by the council in July 1999 on the ground that he was not, as a single person, entitled to family-sized accommodation. In November 1999 the council again told Mr Qazi that he would not be granted a tenancy of the house, and he was further told that possession proceedings would be begun if he failed to vacate the house.

    3. Mr Qazi did not vacate the house and in March 2000 the council issued proceedings seeking possession. In the course of the proceedings Mr Qazi made it known that he had lived in the house with Mrs Abida Qazi and her five-year old son since June or July 2000, that they had been married in an Islamic ceremony in October 1999 and that the marriage had been solemnised in a civil ceremony in July 2000. Mr Qazi sought a review by the council of its decision not to grant him a sole tenancy of the house, but unsuccessfully. Mrs Abida Qazi, pregnant with another child born in December 2000, applied to the council for the grant of a new tenancy to herself and Mr Qazi, but no such grant was made.

    4. In the possession proceedings Mr Qazi based his defence (so far as now relevant) on the contentions that

    (a) in seeking a possession order the council had failed to give effect to his right to respect for his home as required by article 8 of the Convention;

    (b) the council's interference with his right was not justified under article 8(2) of the Convention; and

    (c) the making of a possession order would be a breach of article 8.

The action came on for trial in the Watford County Court sitting at Luton before Mr Recorder Williamson. He held that the effect of Mrs Saman Qazi's notice to quit had been to determine the whole of the previous joint tenancy; that the tenancy had not come to an end because of any decision made by a public authority but by the act of one of the joint tenants; that since expiry of the notice Mr Qazi had had no legal or equitable right or interest in the house and thus had none at the time when action had been brought; and that accordingly the house was not Mr Qazi's home within the meaning of article 8(1) of the Convention and that article was not engaged. The recorder did not therefore consider the issue of justification raised under article 8(2) of the Convention and made the possession order sought.

    5. Mr Qazi challenged the recorder's decision successfully in the Court of Appeal, where Arden LJ gave the leading judgment, Peter Gibson LJ agreed giving brief reasons of his own and Mantell LJ concurred: [2001] EWCA Civ 1834; [2002] HLR 276. In paragraph 47 of her judgment, Arden LJ defined the question of law before the court as being

    "whether a former tenant whose tenancy has come to an end by operation of law can, after that time, have a right to a home for the purposes of Article 8 of the Convention".

After a close examination of the Strasbourg jurisprudence she gave an affirmative answer to that question, rejecting the argument that article 8 is not engaged where a former tenant lacks any legal or equitable right or interest in the house. In paragraph 57 she concluded that Mr Qazi "did have a right to a home for the purposes of Article 8 when the possession proceedings were served on him".

    6. I would respectfully question whether Arden LJ was quite right to define the issue in terms of "a right to a home", since the European Court of Human Rights has made clear that article 8 does not in terms give a right to be provided with a home and does not guarantee the right to have one's housing problem solved by the authorities: see Chapman v United Kingdom (2001) 33 EHRR 399, paragraph 99; Marzari v Italy (1999) 28 EHRR CD 175, 179; O'Rourke v United Kingdom (26 June 2001, Application No 39022/97). Thus in the present case the two questions which in my opinion arise are


    whether (when proceedings were issued and possession was ordered) the house at 31 Hutton Lane was Mr Qazi's home within the meaning of that expression as used in article 8 of the Convention; and, if so,


    whether what the council or the court did or proposed to do infringed his right to respect for his home.

    If both questions are answered in Mr Qazi's favour there arises the issue of justification, which the recorder did not have to address and which the Court of Appeal remitted to the county court. If that stage is reached, the issue of justification turns on the application of article 8(2) of the Convention:

    "There shall be no interference by a public authority with the exercise of this right [here, the right to respect for one's home] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

    7. It is convenient to begin by considering the two questions as formulated above.

The first question

    8. The European Convention for the Protection of Human Rights and Fundamental Freedoms was an attempt to identify the rights and freedoms most central to the enjoyment of human life in civil society and to give those rights and freedoms an appropriate measure of protection among member states of the Council of Europe. Not surprisingly, the need for some protection of the home was recognised in the Convention, since few things are more central to the enjoyment of human life than having somewhere to live. On a straightforward reading of the Convention, its use of the expression "home" appears to invite a down-to-earth and pragmatic consideration whether (as Lord Millett put it in Uratemp Ventures Ltd v Collins [2001] UKHL 43, [2002] 1 AC 301, paragraph 31) the place in question is that where a person "lives and to which he returns and which forms the centre of his existence", since "home" is not a legal term of art and article 8 is not directed to the protection of property interests or contractual rights.

    9. This approach to the meaning of "home" is, I think, fortified by consideration of article 8(1) as expressed in other languages: "son domicile", "proprio domicilio", "su domicilio" and "seiner Wohnung", for example, all direct attention to the place where a person lives. Save in one case mentioned below (paragraph 10) this has been the approach of the Strasbourg institutions also. In Gillow v United Kingdom (1986) 11 EHRR 335, paragraph 46, the Court held that the house in question was the applicants' home because although they had been absent from Guernsey for many years they had not established any other home elsewhere in the United Kingdom and had retained "sufficient continuing links" with the house for it to be considered their home for the purposes of article 8. This test was repeated and elaborated by the Commission in Buckley v United Kingdom (1996) 23 EHRR 101 at 115, paragraph 63:

    "'Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links. The factor of 'unlawfulness' is relevant rather to considerations under paragraph 2 of that provision of 'in accordance with law' and to the balancing exercise undertaken between the interests of the community and those of the individual in assessing the necessity of any interference".

The Commission repeated the substance of this passage in Mabey v United Kingdom (1996) 22 EHRR CD123, 124, and in O'Rourke v United Kingdom (26 June 2001, Application No 39022/97) the Court once again insisted on an individual's need to show sufficient and continuing links with a place in order to establish that it is his home for purposes of article 8.

    10. In none of these cases, as Mr Arden QC for the council correctly submitted, were the facts indistinguishable from those of this case. In some the applicant had a proprietary interest in a house (Gillow) or land (Buckley, Mabey), but could not lawfully live in the house or on the land. In O'Rourke the applicant claimed as his home a hotel room which he had occupied for less than a month at the discretion of the proprietors before being evicted: in this case the Court had "significant doubts over whether or not the applicant's links with the hotel room were sufficient and continuous enough to make it his 'home' at the time of his eviction". The general approach of the Strasbourg institutions has however been to apply a simple, factual and untechnical test, taking full account of the factual circumstances but very little of legal niceties. The exception, properly relied on by the council, is S v United Kingdom (1986) 47 DR 274. In this case, where the applicant was not entitled in domestic law to succeed to a tenancy on the death of her partner, the Commission attached importance to this fact and ruled in paragraph 4 of its opinion:

    "The Commission notes that the applicant was occupying the house, of which her partner had been the tenant, without any legal title whatsoever. Contractual relations were established between the local authority and the deceased partner and that contractual agreement may or may not have permitted long-term visitors. The fact remains, however, that on the death of the partner, under the ordinary law, the applicant was no longer entitled to remain in the house, and the local authority was entitled to possession so that the house could no longer be regarded as 'home' for the applicant within the meaning of Article 8."

It is, however, noteworthy that this ruling was made before formulation of the sufficient continuing links test in Gillow, that it has not been relied on by the Court or the Commission in any of the later cases I have cited, and that after the passage quoted above the Commission went on to review the issue of justification under article 8(2) on the assumption that the applicant's right to respect for her home had been the subject of interference. In paragraph 55 of her judgment Arden LJ concluded that S v United Kingdom no longer offered guidance to be taken into account in deciding the issue before the Court of Appeal.

    11. I agree with that conclusion. When the possession proceedings were issued Mr Qazi had lived at 31 Hutton Lane continuously for eight years. The house had been his home and he had no other. The expiry of his wife's notice to quit brought his right to occupy the house as a tenant to an end, but it did not bring his occupation to an end. The house continued to be the place where he lived and so his home. Any other conclusion would not, in my opinion, reflect the clear thrust of Strasbourg authority. I would accordingly give an affirmative answer to this first question.

The second question

    12. Mr Arden submitted, in a written summary of his argument, that

    "article 8 is not engaged at all [where rights either have never existed at all (ie squatters) or have ended other than by the action of the public authority (eg notice to quit by tenant)] and when the landlord asks the tenant to leave what was let as a qualified or limited home, whether for an identified period or in some other way, eg employment-related, short life use pending development, homelessness accommodation, sub-leasing arrangements, accommodation during works, ie there is no disrespect inherent in declining to grant, continue or extend what was not let as an indefinite or unqualified right to use premises as a home (as opposed to taking away what would otherwise be an indefinite or unqualified right, such as that enjoyed by a secure tenant)."

My initial reaction to this submission is, I must acknowledge, one of resistance. The simple, untechnical test of "home" which I have described above is easily understood and easily applied to facts arising in the different member states. I would expect a similarly simple and untechnical test to be applied to "respect" and "interference". Details of the bargain made between owner and occupier, and the provisions of national law governing that bargain, are likely to be crucial in deciding the issue of justification under article 8(2) if that stage is reached, but it would seem to me to undermine the broad international application at which the Convention aims if matters of this kind are treated as determinative when considering whether there has been interference or a lack of respect.

    13. Initial reactions are not however a safe guide to resolution of an important issue such as this, and regard must be paid to the Strasbourg jurisprudence for such help as it can give. Both parties to the appeal accept (as is indeed clear) that no conclusive answer is to be found. But both seek to derive support from it.

    14. In Di Palma v United Kingdom (1986) 10 EHRR 149 the applicant's lease was forfeited on her non-payment of a service charge and possession was ordered. Her primary claim was made (unsuccessfully) under article 1 of the First Protocol to the Convention. But she also complained that her eviction from her home constituted an unjustified interference with the right to respect for her home protected by article 8. The Commission held this complaint to be manifestly ill-founded because (page 155) "any interference with [her] right to respect for her home which the forfeiture of her lease engendered was in conformity with Article 8(2) . . .". The Commission did not expressly rule whether the forfeiture or eviction were an interference.

    15. In P v United Kingdom (12 December 1990, Application No 14751/89) the applicants had been evicted, following the service of notice to quit, from a caravan site where they had lived for many years. Her Majesty's Government admitted that the eviction constituted an interference with the applicants' right to respect for their home (although they had by that stage no rights in relation to it) but the Commission made no ruling:

    "The Commission has considered whether the termination of the applicants' occupation of the site in accordance with the tenancy agreement can be considered as an interference with their rights under Article 8 para 1 . . . of the Convention. Even assuming that it could constitute an interference, however, the Commission finds that it would be justified under Article 8 para 2 . . . of the Convention . . .".

The Commission pointed out that the applicants could not derive from article 8 an unconditional right to remain on the site.

    16. The application in Ure v United Kingdom (27 November 1996, Application No 28027/95) was founded on facts legally indistinguishable from the present. The applicant's tenancy came to an end on expiry of a notice to quit given by his wife, formerly a joint tenant with him, and possession was ordered. The Commission held that his complaint under article 8 was manifestly ill-founded because the alleged interference with the applicant's rights under the article was justified under paragraph (2) of the article.


    Wood v United Kingdom (1997) 24 EHRR CD 69 arose from the repossession of the applicant's house by a mortgagee when she defaulted on her payments due under the mortgage. The Commission held the application to be manifestly ill-founded, observing (at 70-71):

    "In so far as the repossession constituted an interference with the applicant's home, the Commission finds that this was in accordance with the terms of the loan and the domestic law and was necessary for the protection of the rights and freedoms of others, namely the lender. To the extent that the applicant is deprived of her possessions by the repossession, the Commission considers that this deprivation is in the public interest, that is the public interest in ensuring payment of contractual debts, and is also in accordance with the rules provided for by law."

    18. In Larkos v Cyprus (1999) 30 EHRR 597 a tenant who had lived for many years in a house rented from the government was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would have enjoyed against a private landlord. His complaint was made under article 14 of the Convention in conjunction with article 8, not under article 8 alone: it related to the manner in which the alleged difference in treatment adversely affected the enjoyment of his right to respect for his home guaranteed under article 8. The Court observed (at 608):

    "Mr Larkos has not contended that there has been a breach of Article 8 on account of the fact that, being a government tenant, he is faced with the threat of eviction from his home. However, it suffices for the purposes of the application of Article 14 that the facts relied on in the instant case fall within the ambit of Article 8 and the relevance of that Article cannot be denied in view of the judgment of the District Court of Nicosia ordering Mr Larkos to leave his home."

It was, it seems, that order, which under domestic law the national court was bound to make, which constituted the required interference or lack of respect.

    19. The applicant in Marzari v Italy (1999) 28 EHRR CD 175 was evicted by court order on the application of his public authority landlord following his failure to pay rent. It appears that his complaint under article 8 may well have been based on lack of respect for his private life, but it is not clear that such was his only complaint under the article. At 180 the Court ruled

    "that the applicant's eviction from his apartment interfered with his rights under Article 8(1). The Court therefore has to examine whether the interference was justified under the terms of paragraph 2 of Article 8."

In the result, the Court did not find "any appearance of a breach" of article 8 on account of the authorities' decision to proceed with the applicant's eviction from his apartment.

    20. It seems to me that these authorities, although inconclusive, give somewhat more help to Mr Qazi than to the council. They reveal a tendency to assume an interference or lack of respect and then to consider justification, an issue decided against the applicant in all the cases except Larkos, where the complaint was of discrimination in conjunction with article 8. It is noteworthy that although, in all the five cases held to be manifestly ill-founded, the applicant had, under domestic law, no arguable legal right to remain in the property from which he or she had been evicted, the adverse decision was never based on that short (and, if correct, obvious) ground.

    21. Strasbourg authority is of course the primary source of guidance on the interpretation and application of the Convention. But the House was helpfully referred to three recent decisions of the Court of Appeal of which mention should be made. Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48 concerned a possession order made against an assured shorthold tenant. Under the Housing Act 1988 the landlord could not obtain possession without an order of the court, but the court was bound to make an order if the tenancy was subject to section 21(4) of that Act and proper notice had been served. Both these conditions were satisfied. The argument turned on article 8, coupled with article 6, of the Convention. The Secretary of State for the Environment, Transport and the Regions exercised his right to intervene, and counsel instructed on his behalf submitted that although the possession proceedings constituted an interference with the tenant's home, the interference was justified under article 8(2). The court (Lord Woolf CJ, May and Jonathan Parker LJJ) held in paragraph 67 that eviction from her home would impact on the tenant's family life. But it found (paragraphs 67-72) that the interference was justified.


    R (McLellan) v Bracknell Forest Borough Council; Reigate and Banstead Borough Council v Benfield [2001] EWCA Civ 1510, [2002] QB 1129 concerned the termination of introductory tenancies in accordance with procedures introduced under the Housing Act 1996. In both of these appeals, heard together, the Secretary of State was again represented by counsel who asserted that article 8 was engaged (see paragraph 36). The submission made by Mr Arden QC, then representing the Reigate and Banstead Borough Council, was recorded in the leading judgment of Waller LJ (with whom Latham and Kay LJJ agreed) in paragraph 37:

    "Mr Arden's argument in short was this. He suggested that since a tenant would know the basis on which he or she had become a tenant, ie on the basis that the statutory provisions and procedures of the introductory tenancy scheme applied to it, the rights of the tenant to occupy the premises were simply in accordance with that scheme. Thus if the council complied with the provisions of the introductory tenancy scheme in order to bring the tenancy to an end, that involved no want of respect for the tenant's home. So it is argued the question whether the scheme had been complied with would be the first question which, if answered in favour of the council, would lead to the conclusion that article 8(1) was not engaged. It would then follow that the question whether the eviction could be justified under article 8(2) would not arise."

The argument was rejected:

    "42 In my view the terms of article 8(2) demonstrate that Mr Arden's approach is not a proper approach to article 8. It is not a preliminary question whether the tenancy has been properly terminated in accordance with its terms. It is under article 8(2) that the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others. In Poplar Housing and Regeneration Community Association Ltd v Donoghue the Court of Appeal decided that Poplar was a public authority and thus that article 8(2) was directly applicable, but it seems to me that even if it had been a private landlord seeking to evict a tenant under an assured shorthold tenancy, the court as a public authority would have had to approach section 21(4) of the Housing Act 1988 (the section under consideration in that case) in much the same way. It would have concluded that section 21(4) did not infringe any article 8 right but not because article 8 did not apply at all, but because the eviction was in accordance with the law and because it was not disproportionate to allow the tenancy to be brought to an end in accordance with the rights of the landlord. The wording of article 8(2) is apposite to allow consideration not only of the tenant's rights, and not only the rights of persons other than the landlord and the tenant, i.e. other tenants for example, but the rights of the landlord as well. In S v United Kingdom 47 DR 274, 278 the Commission put their conclusion in these terms:

    'Further, even if the applicant's right to respect for her home, as guaranteed by article 8, could be regarded as having been interfered with by order of the county court for possession against her, the Commission considers that such interference was clearly in accordance with the law and was also necessary for the protection of the contractual rights of the landlord to have the property back at the end of the tenancy.'

    43. I would accordingly reject Mr Arden's argument that article 8 has no application."

    23. The third decision of the Court of Appeal, in Sheffield City Council v Smart; Central Sunderland Housing Company Ltd v Wilson [2002] EWCA Civ 04, [2002] HLR 639, was made after, and followed, the decision now under appeal. The appeals arose from possession orders made on the application of housing authorities following the termination of non-secure tenancies. Laws LJ, giving the leading judgment with which Thorpe and Kay LJJ agreed, did not accept the argument advanced by counsel for the housing authorities summarised in this way:

    "Mr Underwood submitted that there is no prima facie violation of Article 8(1) by action taken for possession in cases such as these. Essentially the argument (if I may venture to summarise it in my own words) runs as follows. The Convention recognises that there is a balance to be struck between public interest and private right; and all these considerations which I have enumerated, taken together, lead to the conclusion that the statutory regime for the accommodation of homeless persons, including the right of the local authority to serve and act on a notice to quit relating to such a person's non-secure tenancy, involves no actual or potential violation of Article 8(1) because the necessary balance has effectively been struck by the legislation itself. So long as the council's decision to seek possession, and the decision's implementation, comply with conventional public law standards, and the legal process undertaken to obtain possession complies with the relevant private law requirements, there can be no interference with the tenant's Article 8(1) right to respect for his or her home."

Having referred to the Commission's ruling on the meaning of "home" in paragraph 63 of the decision in Buckley v United Kingdom (1996) 23 EHRR 101 and to the Court of Appeal's decision in this case, Laws LJ continued in paragraphs 26-27:

    "Clearly the present cases are not concerned with any issues of legal or equitable interest. But the approach taken in Buckley, and approved as a matter of domestic human rights law in Qazi goes some distance to support my view that there is prima facie a violation of Article 8(1) in these cases. 'Home' is an autonomous concept for the purpose of ECHR, and does not depend on any legal status as owner. Thus in these cases, the premises in Sheffield and Sunderland were without question the women's homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amounted to an interference with the appellants' right of respect of their homes. I have said that the case is all about Article 8; more precisely, it is all about Article 8(2).

    Before proceeding to the issues arising under Article 8(2), I should make it clear that I entertain what is perhaps a deeper reason for my view that the case cannot be concluded by a judgment that there is no violation of Article 8(1). It concerns the relationship between the two paragraphs of Article 8. I have held that eviction of these appellants would constitute a prima facie violation of their right to respect for their homes. But this conclusion is not simply an instance of that everyday judicial process, the application of a statute's correct construction (here, Article 8(1)) to a particular set of facts. Rather it has a purposive quality. The court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation's words mean. The first choice (accepting Mr Underwood's submission) would entail a judgment that the Convention requirement was met at the Article 8(1) stage: on balance, taking into account all the factors which I have listed in paragraph 23, there was no want of respect for the appellants' homes. The second choice (accepting a prima facie violation of Article 8(1)), which I prefer, entails a judgment that the more rigorous and specific standards set out in Article 8(2) have to be met if the court is to hold that the evictions are compatible with the appellants' Convention rights. The Convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken. Part of the court's task is to decide how close that engagement should be in the context in hand. Thus I do not eschew the first choice merely because I take the view that the second more naturally reflects the ordinary sense of the words used in Article 8(1). I consider as a matter of substance that the vindication and fulfilment of the Convention rights, for which purpose HRA was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the Article 8(2) standards. Such a process is demanded by the fullness of our municipal law of human rights."

This reasoning, like that of Arden LJ in the present case, reflects the tenor of the Strasbourg jurisprudence and, in my opinion, gives effect to the purpose of the Convention. I agree with it. In South Bucks District Council v Porter [2003] UKHL 26, [2003] 2 WLR 1547 paragraph 37, I wished to leave open the question whether "any action by a public authority seeking possession of residential property occupied by a defendant engages the operation of article 8". Now that the question has been fully explored, I am satisfied that such actions will ordinarily do so if the residential property is occupied by the defendant as his home. But nothing I have said in this opinion should be understood as applying to any landlord or owner which is not a public authority.