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

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    78. In Lambeth London Borough Council v Howard [2001] EWCA Civ 468, (2001) 33 HLR 636, 645, para 32 where possession was sought against a secure tenant on the grounds of nuisance under ground 2 of Part I of Schedule 2 to the Housing Act 1985, Sedley LJ said:

    "A legal threat to a secure home will, in the ordinary way, engage article 8(1). In situations where the law affords an unqualified right to possession on proof of entitlement, it may be that article 8(2) is met, but that is not the present class of case and nothing in this judgment should be taken as impinging on it."

As I have already indicated, I respectfully agree with the opinion which he has expressed in the first sentence of this quotation. But I think that the point which he makes at the outset of the second sentence can be expressed more strongly. My understanding of the European jurisprudence leads me to the conclusion that article 8(2) is met where the law affords an unqualified right to possession on proof that the tenancy has been terminated.

    79. In Sheffield City Council v Smart [2002] EWCA Civ 04, [2002] HLR 639 the defendant had been granted a non-secure tenancy of a residential property as a homeless person under section 193 of the Housing Act 1996. Complaints that she was causing a nuisance were received from neighbours, so the housing authority served her with a notice to quit. When it had taken effect the authority applied for a possession order. The Court of Appeal held that there was a prima facie violation of article 8(1) but, after examining of the scheme laid down by Parliament, that there had been no breach of the defendant's article 8(1) right in that case. It was also held, following R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129 that a challenge to the decision to serve a notice to quit could be made in judicial review within the appropriate time limits, and that in the rare situation where something wholly exceptional happened after service of the notice to quit which fundamentally altered the rights and wrongs of the proposed eviction the judge in the county court who was hearing the claim for possession might be obliged to address it in deciding whether the making of a possession order could be justified: see pp 659 and 660, paras 40 and 44-45, per Laws LJ. I wish to reserve my opinion as to whether it would be open to the tenant, in a wholly exceptional case, to raise these issues in the county court where proceedings for possession were being taken following the service of a notice to quit by the housing authority, bearing in mind as Lord Millett points out that its decision to serve the notice to quit would be judicially reviewable in the High Court so long as the application was made within the relevant time limit. The situation in the present case is different, as it was a notice to quit served by one of the joint tenants that terminated the tenancy.

    80. In Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617 the tenant of a secure tenancy had died. An order for possession was sought against the defendant, who had been living with the deceased but was not a member of the deceased's family as defined by the statute. In this case too it was held that there was a prima facie violation of his rights under article 8(1) but, following a consideration of the statutory scheme, that there had been no violation. As Mance LJ explained, at pp 642-643, para 82, that case belongs to a different category of case from this one as it was a statutory scheme that terminated the tenancy. He observed that the question whether there might prove in the county court to be short answers to the question raised by article 8(2) was not before the Court of Appeal in this case. That is not the position now, as your Lordships gave permission for argument to be presented on the question whether every claim for possession of a home engages article 8. In the course of that argument submissions were made as to whether, in a case of this kind, the right to respect for a home had been violated.

Conclusion

    81. In the second paragraph of his speech, which I have had the opportunity of reading in draft, my noble and learned friend Lord Steyn says that the approach of the majority empties article 8(1) of any or virtually any meaningful content and that it allows domestic notions of title, legal and equitable rights to colour its interpretation.

    82. I hope that I have been able to show that this is not so. I believe that the key to a proper understanding of the issues in this case lies in an appreciation of the fact that article 8 regards a person's home as an aspect of his right to privacy. The interpretation which I would give to the concept of a person's home in this context is broad enough to give a full measure of protection in a wide range of circumstances that may be envisaged where a person's right to respect for his home is interfered with by the public authorities. The issue which arises in this case is, by way of contrast, a very narrow one which has much more to do with the law relating to property rights than respect for a person's privacy.

    83. I do not say that the right to respect for the home is irrelevant. But I consider that such interference with it as flows from the application of the law which enables the public authority landlord to exercise its unqualified right to recover possession, following service of a notice to quit which has terminated the tenancy, with a view to making the premises available for letting to others on its housing list does not violate the essence of the right to respect for the home under article 8(1). That is a conclusion which can be applied now to all cases of this type generally.

    84. I agree with my noble and learned friends Lord Millett and Lord Scott of Foscote that the Strasbourg jurisprudence has shown that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court. I would allow the appeal and restore the order of Mr Recorder Williamson.

LORD MILLETT

My Lords,

    85. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Scott of Foscote. They have subjected the case law of the Strasbourg Court to close analysis and there is no need for me to repeat the exercise. I can therefore be relatively brief in explaining the reasons why I agree with them that the appeal should be allowed. In doing so I wish to make it clear that the difference which divides the majority from the minority is a very narrow one. This should not, however, obscure the fact that it is nevertheless of great practical importance, since it goes to the question whether the county court has discretion to refuse an order for possession in a straightforward situation of daily occurrence.

    86. It used to be an Englishman's proud boast that "an Englishman's home is his castle". The idea was given expression in stirring language by William Pitt the Elder (Lord Chatham) as recorded in Brougham's Statesmen in the Time of George III (First Series) (1839), pp 41-42:

    "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it— the storm may enter—the rain may enter—but the King of England cannot enter ! —all his force dares not cross the threshold of the ruined tenement !"

    87. Although not unrelated to his rights of property, the poor man's defiance of the King was not based on his title. The common law protects possession as well as title. A person who is in actual possession of land is entitled to remain in peaceful enjoyment of the property without disturbance by anyone except a person with a better right to possession. It does not matter that he has no title. A squatter can maintain a claim of trespass. His want of title does not justify the authorities in searching his premises without a search warrant. He cannot be evicted save at the suit of someone with a better right to possession, and even then that person must rely on the strength of his own title and not the weakness of the squatter's.

    88. The same idea is now enshrined, in suitably restrained and less colourful language, in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms:

    "Right to respect for private and family life

    1. Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right 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 the protection of the rights and freedoms of others."

The reference in article 8(2) to "interference with … the exercise of this right" is somewhat clumsily expressed in relation to the right in question. It is to be interpreted as forbidding interference with the enjoyment of the right in question.

    89. Rights of property are protected by the First Protocol to the European Convention, not by article 8. Although added by a later Protocol the heading to article 8 indicates its essential thrust. It is not directed to the individual's rights of property but to his right to be left alone to live a normal family life without arbitrary interference by the public authorities: see Marckx v Belgium (1979) 2 EHRR 330, 342. In article 8 an individual's "home" is not defined by the particular building which he owns or occupies. The Strasbourg Court has repeatedly stated that article 8 does not give anyone a right to a home or "an unconditional right to remain" in any particular home: see P v United Kingdom Application No 14751/1989. A person's "home" is rather the place where he and his family are entitled to be left in peace free from interference by the state or agents of the state. It is an important aspect of his dignity as a human being, and it is protected as such and not as an item of property.

    90. The facts of the present case are in small compass. Mr and Mrs Qazi were council tenants. They had a joint tenancy of a two-bedroomed house and lived there with their daughter. The marriage broke up and Mrs Qazi and her daughter went to live elsewhere, leaving her husband alone in the house. She divorced him and he has remarried. She gave the council written notice to determine the tenancy in accordance with the terms of the tenancy agreement. This brought the tenancy to an end and with it Mr Qazi's right to go on living in the house. He applied to the council for a new tenancy, but his application was refused on the legitimate ground that he was now a single person and that acceding to his application would result in under-occupation of a house which should be made available to accommodate a family with greater priority need in an area of acute housing shortage.

    91. Mr Qazi did not vacate the house and the council brought possession proceedings against him in the county court. The council is a public authority, and Mr Qazi could, if so minded, have challenged its decisions to refuse his application for a new tenancy and to bring proceedings to recover possession on the grounds that they were "arbitrary", that is to say not objectively justifiable but unreasonable or disproportionate. Such proceedings would have to be brought in the High Court; but the county court could have been asked to stay the possession proceedings in order to permit them to be brought, though he would have had to show that they would have at least some prospect of success.

    92. Mr Qazi did not take this course. Instead he resisted the possession proceedings on the ground that by bringing them the council was interfering with the enjoyment of his right to respect for his home contrary to article 8. Absent a timely challenge to the lawfulness of the council's decisions to refuse a new tenancy and seek possession, Mr Qazi had no defence under domestic law. The question to be decided in this appeal is whether he had any arguable defence by reference to article 8.

    93. The recorder held that article 8 was not "engaged", that is to say was not applicable, because the premises were not Mr Qazi's "home" within the meaning of article 8. It was not his "home" because he had no legal or equitable right or interest in the premises.

    94. It is not disputed that, once his tenancy was determined, Mr Qazi no longer had any legal or equitable proprietary right in the premises. But the recorder's conclusion that Mr Qazi had no sufficient interest in the premises to support his claim to be left to enjoy them in peace was untenable even as a matter of domestic law. He was in actual possession, and this was enough to enable him to claim the protection of the law against anyone who did not have an immediate right to possession.

    95. The Court of Appeal allowed Mr Qazi's appeal, and after a review of the case law of the Strasbourg Court held that the premises were Mr Qazi's "home" for the purposes of article 8. I agree with all your Lordships that they were right to do so. The word "home" has an "autonomous" meaning in the Strasbourg jurisprudence, that is to say one which is independent of any particular meaning which may be attributed to it in the law of an individual contracting state. It does not, however, bear a special legal meaning developed by the case law of the Strasbourg Court, as does the expression "civil rights" for example. It bears its natural and ordinary meaning as popularly understood throughout the contracting states. Whether premises constitute a person's "home" for the purposes of article 8 is therefore a question of fact, and the Strasbourg Court will examine the facts for itself in order to determine whether they do so.

    96. Considered as a question of fact, the premises were Mr Qazi's home at all material times. They were his home when he lived there with his former wife, and they continued to be his home after she left him. They did not cease to be his home when his tenancy came to an end. The most that can be said is that he no longer had a legal right to remain in occupation which he could maintain against the council, though he could maintain it against anyone else. He was liable to be evicted at the suit of the council; but while he lived there it was still his home. It was his home when the council brought proceedings against him, and it was still his home when the recorder made a possession order against him. It would not have ceased to be his home until he left possession or was evicted by the bailiffs. This has not happened. He lives there to this day, now with his second wife and two children. It is still his home.

    97. This is the approach which has been adopted by the Strasbourg Court. Its case law has been consistent in treating the question as one of fact. It is neither necessary nor sufficient that the applicant should have a proprietary interest in the premises which are alleged to constitute his "home". A person may make his home where he has no right to be; and a person may choose not to make his home where he has a right to live. I agree with my noble and learned friend Lord Scott that S v United Kingdom (1986) 47 DR 274 (EComHR) has been misinterpreted, and that properly understood it remains authority for what it decided. Although clumsily expressed, the Commission's decision was clearly based on the fact that the local authority was entitled to possession. This was the basis of the Commission's conclusion that the house could "no longer be regarded as 'home' for the applicant within the meaning of article 8." The Commission cannot have meant this literally, for it would emasculate article 8. Its protection would entirely fall away as soon as the applicant's tenancy came to an end. The police could search his house without a warrant; the applicant and his family would be liable to immediate and arbitrary eviction by anyone with or without a shadow of a legal right without the protection of the Convention. Not only is this indefensible in human rights terms, it does not follow (as the Commission thought the local authority's compliance with its obligations under article 8 did) as a logical consequence of the determination of the applicant's tenancy. I think that the Commission was saying that the house could no longer be regarded as attracting the protection of article 8 so as to afford a defence to the local authority's claim to possession. So understood the decision is both internally logical and consistent with the later jurisprudence of the Strasbourg Court.

    98. The only other case to which I would refer at this stage is Gillow v United Kingdom (1986) 11 EHRR 335. This was a decision of the Strasbourg Court and was concerned with the converse case where the applicant owns the premises but does not live there. The Court held that, although the applicants had not lived in the premises for 19 years, they had not established any other home elsewhere in the United Kingdom and had "retained sufficient continuing links" with the subject premises for them to be considered their "home" for the purposes of article 8. I do not think that this undermined the decision in S v United Kingdom in any way. It did not substitute a new test of "sufficient and continuous links" for a former test of legal or equitable title, for this test, if it be one at all, was satisfied. It merely showed that, whether or not title was necessary to bring premises within the protection of article 8, it might not be sufficient.

    99. Accordingly I am satisfied that, when the local authority's claim for possession came before the recorder, and contrary to his decision, the premises did constitute Mr Qazi's "home" for the purposes of article 8.

    100. It necessarily follows that article 8 was applicable. But it does not follow that it was even arguably infringed. In my opinion article 8 is not ordinarily infringed by enforcing the terms on which the applicant occupies premises as his home. Article 8(1) does not give a right to a home, but only to "respect" for the home. This meaning of "respect" for the home cannot be understood in isolation; it can be understood only if article 8(1) is read together with article 8(2). This forbids interference with the right conferred by article 8(1) except in the circumstances specified. By explaining the circumstances in which there may be lawful interference with the right to "respect", article 8(2) gives meaning to that concept and limits the scope of the article.

    101. Article 8(2) stipulates that interference with the right must not be arbitrary; it must be in accordance with law. This requirement is satisfied in the present case, and it need not be examined further. But this is not sufficient. The interference must also be justified. In most cases article 8(2) calls for a balance to be struck between the applicant's right to "respect" for his home and some competing public interest, such as national security, public safety, the prevention of disorder or crime, the protection of health or morals, and so on. But article 8(2) also permits interference with the right where it is necessary "for the protection of the rights and freedoms of others". Those others include but are not limited to private citizens. They include landowners whether they are private citizens or public authorities.

    102. Consideration of the question whether interference with the right is "necessary for the protection of the rights and freedoms of others" may also call for a balance to be struck, but it need not do so. A person's right to respect for his home includes his right to listen to music, but not to music so loud that it disturbs his neighbour's sleep at 3.00 am. Our ordinary law of nuisance requires the court to conduct a balancing exercise between the competing rights of neighbours to enjoy their respective properties. By carrying out that exercise the court will inevitably be concluding, whether consciously or not, whether its interference with one party's right to respect for his home is necessary to protect his neighbour's rights and freedoms. Provided that it carries out the exercise properly and in accordance with the ordinary law, there is no need to give separate consideration to article 8.

    103. But no such balancing exercise need be conducted where its outcome is a foregone conclusion. In the present case, as in S v United Kingdom, the local authority had an immediate right to possession. The premises were Mr Qazi's home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to "respect" Mr Qazi's home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them. There was simply no balance to be struck.

    104. This conclusion too is in accordance with Strasbourg jurisprudence. I have already referred to S v United Kingdom, where in very similar circumstances the Commission declared the complaint to be manifestly ill-founded. Another such case is Wood v United Kingdom (1997) 24 EHRR CD 69 where the Commission rejected a complaint by a mortgagor who was in default that her article 8 rights had been infringed by the making of a possession order at the suit of the mortgagee. The Commission held that even if the repossession constituted an interference with the applicant's home, it 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 mortgagee. There was thus no infringement of the article 8 right. There is no relevant distinction between that case and the present. It is true that the mortgagee in Wood v United Kingdom was not a public authority whereas the council in the present case is; but the council's conduct as a public authority was not challenged, as it could have been by proceedings for judicial review in the High Court, and in bringing its claim for possession it relied on its ordinary rights, shared by everyone, as the owner of the premises and not on its rights as a public authority. Its status as a public authority was simply irrelevant to its claim.

    105. An instructive case which demonstrates the limits of the protection afforded by article 8 is Larkos v Cyprus (1999) 30 EHRR 597 As in the present case, the applicant was a tenant whose tenancy had come to an end and whose landlord sought possession. The applicant was a tenant of government-owned premises, and as such was not entitled to the security of tenure which he would have enjoyed if he had held his tenancy from a private landlord. He did not complain of an infringement of article 8 alone, and it is clear that neither the Commission nor the Court would have found one. They found a breach of article 14 taken in conjunction with article 8. Article 14 secures the enjoyment of Convention rights without discrimination. The Convention right in question was the right to respect for the applicant's home. That had been secured to tenants, but on a discriminatory basis which infringed article 14.

    106. The Commission expressly acknowledged that article 8 does not require states to take measures to protect tenants from eviction after the termination of the contracts under which they occupy their homes. But the state concerned had done so. Since the law by which it had done so "regulates the right to respect for one's home" it must apply in a non-discriminatory manner in accordance with article 14. The importance of Larkos v Cyprus for present purposes lies in the fact that, if national law had not discriminated against government tenants by withholding the security of tenure which it granted to tenants of private landlords, the eviction would not have amounted to a breach of the applicant's article 8 rights.

    107. It follows that I do not accept without qualification the suggestion of Laws LJ in Sheffield City Council v Smart [2002] HLR 639 that, once it is established that the premises in question are the applicant's home, an order for possession amounts to an interference with (and prima facie an infringement of) his article 8 right of respect for his home. The qualification, which is built into the provisions of article 8 itself, is that save in wholly exceptional circumstances (which it has not been suggested exist in the present case and with which I shall deal below) there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law.

    108. I would also wish to dissociate myself from the dictum of Waller LJ in R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 that, even in a case where a private landlord is seeking possession, the court, as a public authority, must consider whether the order is justified under article 8(2) before making an order. The fact that a person cannot be evicted without a court order does not mean that the court, as a public authority, is bound in each case to consider whether an order for possession would be disproportionate and infringe article 8 rights. The court is merely the forum for the determination of the civil right in dispute between the parties: see Di Palma v United Kingdom (1986) 10 EHRR 149. Its task is to resolve the dispute according to law. In doing so it would, of course, have to consider whether the landlord was entitled to possession as a matter of our ordinary domestic law (ie. apart from the Human Rights Act 1998), taking into account the various statutory provisions which operate in this field. But once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate. The order is necessary to protect the rights of the landlord; and making or enforcing it does not show a want of appropriate respect for the applicant's home.

    109. I would accordingly endorse the observations of Moses J in R (Gangera) v Hounslow London Borough Council [2003] EWHC Admin 794 that in proceedings between private parties the court does not act incompatibly with article 8 by making or enforcing a possession order without considering questions of proportionality. I also agree with him that it makes no difference that the landlord is a public authority. In most cases the statutory scheme established by Parliament will provide the objective justification for the council's decision to seek possession, which need not be demonstrated on a case by case basis: see Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, 631 - 632. In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review. The availability of this remedy, coupled with the fact that an occupier cannot be evicted without a court order, so that the court can consider whether the claimant is entitled as of right to possession, is sufficient to supply the necessary and appropriate degree of respect for the applicant's home.

 
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