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

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    54. In P v United Kingdom, Application No 14751/89, 12 December 1990, the applicants' complaint that their eviction from a municipal caravan site which had been designed for the accommodation of gypsies was a breach of their rights under article 8 was held to be manifestly unfounded. The Commission considered whether the termination of their occupation of the site in accordance with the tenancy agreement which they had entered into with the local authority, which had been held to entitle the council to obtain an order for possession, could be considered as an interference with their rights under article 8(1). Its conclusion was that, "even assuming that it could constitute an interference", it would be justified under article 8(2) of the Convention (p 7). Among the reasons given was the following (p 8):

    "The Commission considers that the applicants cannot derive from article 8 of the Convention an unconditional right to remain on the Thistlebrook site."

    55. In O'Rourke v United Kingdom, Application No 39022/97, 26 June 2001, the applicant complained that, among other things, his eviction from a hotel room where he had been given temporary accommodation by the local authority was an interference with his right to respect for his home under article 8 of the Convention. In his case too the allegation was found by the Court to be manifestly ill-founded. The Court said that it 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 but that, "even if they were", the eviction was in accordance with law and proportionate in pursuit of the legitimate aims of preventing disorder or crime at the hotel and protecting the rights and freedoms of the proprietors, their staff and other guests: p 6. The reasons for the decision include the following: p 5:

    "The Court recalls that article 8 does not in terms give a right to be provided with a home (see, for example, Chapman v United Kingdom, judgment of 18 January 2001, para 99, to be published). It considers therefore that the scope of any positive obligation to house the homeless must be limited."

    56. In Chapman v United Kingdom (2001) 33 EHRR 399 the applicant was a gypsy who lived with her family in a caravan on her own land. She was refused the planning permission which she needed if she was to be allowed to live there. When enforcement measures were taken against her she complained that her rights under articles 6, 8 and 14 and article 1 of the First Protocol had been violated. The Government accepted, adopting the language of article 8(2), that there had been "an interference by a public authority" with her right to respect for her home which had been disclosed by the refusal of planning permission to allow her to live in her caravan on her own land and the pursuit of enforcement measures against her: p 421, para 75. The Court too was satisfied on this point: p 422, para 78. It was not contested by the applicant that the measures to which she was subjected were in accordance with the law. In the course of its discussion of the question whether the interference pursued a legitimate aim and was necessary in a democratic society the Court said, at pp 427-428, para 99:

    "It is important to recall that article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision."

    57. Further guidance as to how the Court approaches this article is to be found in Marzari v Italy (1999) 28 EHRR CD 175, Application No 36448/97. The applicant, who was suffering from metabolic myopathy and had been recognised as 100 per cent disabled, was allocated an apartment which he considered to be inadequate to his needs. He ceased paying rent for it, demanding that certain works be carried out to make it suitable for him to live in. He was served with a notice to quit and proceedings were taken against him for his eviction. He complained that his rights under article 8 has been violated. The Court found that his eviction from his apartment interfered with his rights under article 8(1). Its reasons for doing so were explained in this passage, at pp CD 179-180:

    "The Court must first examine whether the applicant's rights under article 8 were violated on account of the decision of the authorities to evict him despite his medical condition. It further has to examine whether the applicant's rights were violated on account of the authorities' alleged failure to provide him with adequate accommodation. The Court considers that, although article 8 does not guarantee a right to have one's housing problems solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under article 8 of the Convention because of the impact of such refusal on the private life of the individual. The Court recalls in this respect that, while the essential object of article 8 is to protect the individual against arbitrary interference by public authorities, this provision does not merely compel the State to abstain from such interference; in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private life. A State has obligations of this type where there is a direct and immediate link between the measures sought by an applicant and the latter's private life."

    58. In Larkos v Cyprus (1999) 30 EHRR 597 the applicant complained that as a government tenant he had been unlawfully discriminated against in the enjoyment of his home as, unlike a private tenant renting from a private landlord, he was not protected from eviction on the expiry of his lease. He relied on article 14 of the Convention and article 1 of the First Protocol in conjunction with article 8 of the Convention. The Commission held that there had been a violation of article 14 taken in conjunction with article 8. In the course of its opinion the Commission said, at p 605, para 32:

    "The Commission considers that, although article 8 of the Convention gives rise to positive obligations for States, it might not necessarily require States to take measures to protect tenants from expulsion after the termination of the contracts by virtue of which they occupied their 'homes'. However, Cyprus has taken such measures by enacting the Rent Control Law (Law 23/1983). Since this law regulates 'the right to respect for one's home' under article 8 of the Convention, it must apply in a non-discriminatory manner in accordance with article 14 thereof."

The Court too held that there had been a violation of article 14 taken in conjunction with article 8. Of particular interest are the following observations, at p 608, para 28:

    "… the Court notes that it has not been disputed that Mr Larkos can rely on the guarantee against unlawful discrimination contained in article 14 of the Convention and it sees no reason to hold otherwise. It observes in this respect that the applicant's complaint relates to the manner in which the alleged difference in treatment adversely affects the enjoyment of his right to respect for his home guaranteed under article 8 of the Convention. 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. Furthermore, even if the applicant has not yet been evicted from his home it is nevertheless the case that the Rent Control Law 1983 has actually been applied to him to his detriment since he and his family have been living under the threat of eviction ever since the instigation of the eviction proceedings and that threat has become even more real following the judgment of the Supreme Court."

    59. In the light of that background it is important to note what the respondent does and does not claim in this case. He does not base his claim that he is threatened with a violation of his Convention rights on article 1 of the First Protocol or on article 14 of the Convention read with article 8. Nor does he claim that his rights under article 6(1) have been violated. His claim is based on the proposition that the appellants acted in breach of article 8 in seeking a possession order against him. He contends that the premises where he is living have not ceased to be his "home" within the meaning of article 8(1) just because it has become unlawful for him to reside in it. He submits that article 8(1) is "engaged", so the appellants must justify their claim for possession under article 8(2).

    60. It is to be noted that the respondent does not contend that there has been an interference with his right to respect for his private and family life or his correspondence. The argument is directed entirely to his right to respect for his home. So the first issue that has to be resolved is whether the house which he has been occupying continuously since 20 January 1992 is his home within the meaning of article 8(1), having regard to the fact that his tenancy of it has been terminated.

"Home"

    61. The word "home" in article 8(1) has an autonomous meaning in the law relating to Convention rights. Its meaning cannot be defined by reference to domestic law. This is because it has to be determined in a way that will enable the expression to be applied uniformly irrespective of the Contracting State from which the case comes. This is a concept which was already familiar in EC law, as words used in Community legislation must receive uniform application in all jurisdictions throughout the EU. But it is a necessary part of the jurisprudence relating to the Convention also. Although its provisions do not all have to be applied uniformly as a margin of appreciation is given to the Contracting States in some contexts, the meaning which they take from the words used in each article of the Convention has to be the same.

    62. The critical question is whether an individual has to have a lawful interest in the premises before they can be regarded as his home within the meaning of article 8(1). The jurisprudence of the European Court and the European Commission does not appear to have been entirely consistent on this issue. In S v United Kingdom (1986) 47 DR 274 the Commission noted, at p 278, para 4 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.

    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."

    63. On the other hand in Buckley v United Kingdom (1996) 23 EHRR 101, where the applicant's occupation had never been lawful because she did not have permission to station her caravans on the land which she had purchased, the following views were expressed at p 115, para 63:

    "The Commission considers … that the concept of 'home' within the meaning of article 8 is not limited to those which are lawfully occupied or which have been lawfully established. '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 found that the applicant's complaint that she was prevented from living with her family in her caravans on her land fell within the scope of article 8 as relating to her right to respect for her family life, private life and home: p 115, para 65.

    64. The factual test which the Commission identified in Buckley v United Kingdom had been adopted by the Court in at least one previous case. In Gillow v United Kingdom (1986) 11 EHRR 335 the Court observed at pp 348-349, para 46 that, although the applicants had been absent from the house in Guernsey of which they had retained ownership for almost nineteen years, they had not established any other home elsewhere in the United Kingdom. It held that they had in the circumstances retained sufficient continuing links with the house for it to be considered their home for the purposes of article 8. The links which they had retained were the ownership of the house, their intention always to return to it and the keeping of their furniture there. The test was essentially a factual one. Although the applicants had a legal title to the house, this factor was not identified as a necessary part of it.

    65. In Khatun v United Kingdom (1998) 26 EHRR CD 212, 215, para 1 the Commission noted that in the domestic proceedings (see Hunter v Canary Wharf Ltd [1997] AC 655) a distinction had been made between those applicants with a proprietary interest in the land and those without such an interest. It added this comment:

    "For the purposes of article 8 of the Convention, there is no such distinction. '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) of the Convention will depend on the factual circumstances, namely the existence of sufficient and continuous links (see Gillow v United Kingdom (1986) 11 EHRR 335). Even where occupation of the property is illegal, this will not necessarily prevent that occupation from being that person's 'home' within the meaning of article 8 of the Convention (see Buckley v United Kingdom (1996) 23 EHRR 101). The Commission considers that article 8(1) applies to all the applicants in the present case whether they are the owners of the property or merely occupiers living on the property, for example the children of the owner of the property."

    66. The observations by the Commission in Khatun v United Kingdom seem to me to be conclusive on this issue. The violation of the right to respect for their homes and family and private lives which was alleged by the applicants in that case was said to have arisen because of the pollution of the area by dust caused by building works in the Docklands area. Their right to occupy the premises was not in issue, so the question whether the accommodation in which they were each living was their "home" for the purposes of article 8(1) did not have to concern itself with the question of their legal title to the premises. The approach which the Commission took is entirely consistent with the view that the object of article 8 is to protect the individual against arbitrary invasion by the public authorities of his privacy.

    67. Where an individual's right to respect for his private and family life is in issue, the application of a narrow or technical test as to what this part of his life comprises would plainly be inappropriate. The same is true of the word "home" when it is used in the same context. It cannot be right that the word should take on a different meaning according to the nature of the interference which is alleged by the applicant. The fact that the European Commission had to alter its approach to this issue from that indicated by a literal reading of the first paragraph of the passage which I have quoted from S v United Kingdom underlines, if I may say so, the importance of keeping the purpose of article 8 firmly in mind when one is considering these concepts.

    68. In my opinion therefore the test which was identified in Buckley v United Kingdom and applied again in Khatun v United Kingdom is the test which should be applied in this case. I think that there is no doubt that the respondent's links with the premises are sufficient and continuous, so they must be regarded as his "home" for the purposes of article 8(1). I would hold, in agreement with all your Lordships, that the fact that the respondent's tenancy has come to an end does not mean that the premises ceased to be his "home" for these purposes.

    69. The more difficult question, to which I now turn, is where that conclusion leads to in the present case. The Court of Appeal held that article 8(1) is engaged by the making of an order for possession. So it remitted the case to the county court to determine whether "interference with Mr Qazi's right to a home" is permitted by article 8(2): [2002] HLR 276, 290, para 58. The description of the right in issue in this case as a "right to a home" must, I think, be taken to have been a slip of the pen. Article 8(1), as the Strasbourg Court has repeatedly said, does not guarantee a right to a home. What it guarantees to the individual is respect for his home, which is an entirely different concept. The question is whether the Court of Appeal was right to remit the case to the county court to determine whether the interference with the respondent's right to respect for his home which will result from the making of an order for possession is permitted by article 8(2).

Is article 8(1) "engaged"?

    70. I mention this question merely to say that I consider that it can receive only one answer in the circumstances. The effect of an order for possession will be to require the respondent to leave the premises which are his "home" for the purposes of article 8(1). Regarding the question of respect for his home as one which is directed in essence to his right to be respected by the public authorities in the enjoyment of his privacy, his removal from his home is bound to interfere with his enjoyment of that right at least to some extent. As Sedley LJ said in Lambeth London Borough Council v Howard [2001] EWCA Civ 468, (2001) 33 HLR 636, 644, para 30, any attempt to evict a person, whether directly or indirectly or by process of law, from his or her home is on the face of it a derogation from the respect to which the home is prima facie entitled. In Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48, 70, para 67 Lord Woolf CJ observed that to evict the defendant from her home would impact on her family life. The same might be said of the impact on the respondent in this case, although I am conscious of the fact that this was not how Mr Luba QC for the respondent has presented his argument.

    71. It follows, to adopt the language of Sir Gerald Fitzmaurice in Marckx v Belgium (1979) 2 EHRR 330, 364, that article 8 is "applicable". The issue which the respondent has raised is within the scope of that article. It is not irrelevant to his case. In that sense the article is "engaged". But in my opinion it does not follow that, on the facts of this case, there is an issue which must be decided within the domestic legal order by remitting the question whether any interference is permitted by article 8(2) for decision by the county court.

Is the interference permitted by article 8(2)?

    72. The issue to which I now turn, as the Law Commission Consultation Paper, para 5.1, points out, raises a question of procedure as well as one of substance. It is a domestic problem. It is not one which troubles the European Court, as it has full jurisdiction to decide all the issues which are remitted to it by article 41 of the Convention. This, no doubt, is why the questions arising under article 8(1) and 8(2) are so often run together at the admissibility stage with the result that the Commission or the Court, as the case may be, is content to address article 8(2) on the assumption that the right to respect for the home has been interfered with: see, eg, S v United Kingdom (1986) 47 DR 274, 278, para 4; O'Rourke v United Kingdom, Application No 39022/97, 26 June 2001, p 6. In the domestic legal order however the county court, which is the court in which actions for possession are brought, does not have unlimited jurisdiction. It does not have jurisdiction in judicial review. The question whether, and if so to what extent, it has a discretion to make or withhold an order for possession depends on the law which has to be applied to the tenancy.

    73. The legislation relating to housing which has been enacted by Parliament is complex and much of it is designed to give statutory protection to tenants. It is necessary only to mention, by way of illustration, the discretionary grounds on which possession may be given which are set out in Schedule 2 to the Housing Act 1985 and the protection which is given to introductory tenancies in Part V of the Housing Act 1996. Where provisions of that kind are in issue, their application to the case where an order for possession is sought must be determined by the county court. In these cases the reasonableness or proportionality of making the order will arise because a decision on this point is required by the statute.

    74. The present case, however, is not a case of that kind. The joint tenancy has been brought to an end by the service of a tenant's notice to quit. The position in domestic law is that in these circumstances, as a result of the joint tenant's action and in terms of the lease, the whole of the joint tenancy is terminated. So neither joint tenant has any longer any right to remain in the premises. The county court has no discretion as to whether or not it should grant an order for possession in these circumstances. In domestic law the making of an order for possession follows automatically. It has not been suggested that the fact that this is what the law provides is itself a violation of article 8. That proposition would not be sustainable in view of the fundamentally subsidiary role of the Convention, which gives special weight to the role of the domestic policy maker: see Hatton and Others v United Kingdom, Application No 36022/97, 8 July 2003, para 97. The only question is whether it is a violation of the respondent's article 8 rights for the law to be applied as it stands to his case.

    75. Some guidance as to what the European Court would make of this issue is provided by Ure v United Kingdom, Application No 28027/95, 27 November 1996, as the facts in that case are very similar to the facts in this appeal. The applicant had become, with his wife, a joint secure tenant of a flat belonging to the housing authority. His wife then left the flat and, having been advised that she could terminate the tenancy by serving a notice to quit, did so. The housing authority then applied for a possession order on the ground that the notice had terminated the joint tenancy. An order for possession was granted by the county court and upheld on appeal. The applicant submitted that the legislation which provided for the termination of a joint tenancy by a unilateral notice by one of the joint tenants operated in a manner which was incompatible with the other tenant's Convention rights. He invoked various articles including article 8 of the Convention, as to which his complaint was that his right to respect for his home had been breached. The Commission's response to this argument was as follows, at p 4:

    "In the present case the Commission notes that the applicant and his wife were joint tenants and that, therefore, the right to use the apartment was to be exercised by them jointly. The applicant apparently was not entitled, under the tenancy agreement, to use the flat as a sole tenant. It was therefore clear at the outset that in the case one of the joint tenants decided to leave, the other could not claim a right to become the sole tenant. This was the legal situation as regards joint tenancies on all types of property, and not only on residential property.

    Furthermore, it does not appear that the manner in which the authorities balanced the various interests involved, such as the interest of the leaving co-tenant, of those in need of accommodation and of the applicant, was arbitrary or unreasonable. Thus, the applicant's housing need apparently changed as he was not living with his wife and child any more. Moreover, replacement housing accommodation had been obtained for the applicant."

    76. It is true, as Mr Luba pointed out, that the Commission did not base its decision in that case on the simple answer that the flat was no longer the applicant's home once the lease had been terminated. But it is plain that the legal situation in domestic law was an important factor. The observations about balancing the various interests involved were directed to a passage in the judgment of the Court of Appeal setting out its reasons for dismissing the applicant's argument that the housing authority, having allegedly instigated and assisted the wife to serve a notice to quit, was not entitled to rely on its own wrongdoing in seeking possession of the flat. They were also directed to an observation by the county court judge that there was nothing in itself either improper, unlawful or unfair in a local authority assisting a tenant in terminating a tenancy so that a person who might be entitled to other accommodation is able to obtain it. That has not formed any part of the respondent's argument in this case. It has not been suggested that there has been any wrongdoing on the appellants' part. The respondent did not seek judicial review of the decision to refuse his application in October 2000 for accommodation through the housing register.

    77. In Wood v United Kingdom (1997) 24 EHRR CD69 the applicant had obtained a loan on the security of her house. It was repossessed when she was unable to meet the repayments on the loan. She complained that her rights under article 8 and article 1 of the First Protocol had been breached. The Commission's response to the complaint under article 8 is set out at pp CD70-71:

    "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 domestic law and was necessary for the protection of the rights and freedoms of others, namely the lender."

In this case the point which was taken in the first paragraph which I have quoted from Ure v United Kingdom was decisive. Reading these two cases together with the second paragraph of the passage which I have quoted from the decision of the Commission in S v United Kingdom, I would expect the European Court to attach much importance to the fact that it was clear from the outset of the respondent's joint tenancy that it could be terminated by a notice to quit by one of the joint tenants, that the appellants' right to immediate possession is in these circumstances unqualified in domestic law and that the premises, once recovered, will be available for letting to others who are in need of housing in their area. The conclusion which I would draw is that on these facts the proposition that there was a violation of article 8 was unarguable.

 
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