London Borough of Harrow (Appellants) v. Qazi (FC) (Respondent)
110. In my opinion the Court of Appeal were right to determine that the premises constituted Mr Qazi's home at the material time, but wrong to remit the case to the county court for further consideration. In my opinion there was nothing further for the county court to consider. There was no arguable breach of article 8, and the Court of Appeal ought to have dismissed Mr Qazi's appeal, albeit on grounds which differ from those of the recorder.
LORD SCOTT OF FOSCOTE
111. The issue before your Lordships turns on the view to be taken of the effect of article 8 of the European Convention on Human Rights on a case where the owner of property is seeking to recover possession from the occupier whose home it has become but who has no right, as against the owner, to remain there. The facts of the case have been fully set out in the opinions given by my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead, as well as in the courts below, and I can deal with them briefly.
112. The property is a two-bedroom house at 31 Hutton Lane, Harrow. The owner is the appellant, the London Borough of Harrow ("the council"). The house forms part of the council's housing stock. The respondent, Mr Qazi and his then wife, Mrs Saman Qazi, became joint tenants of the house under a secure tenancy granted by the council in 1992. They lived there with their daughter. It was their home. In 1998 their relationship broke up. Mrs Qazi left the home with their daughter to live elsewhere and served notice to quit on the council. It may safely be assumed that the service of the notice to quit was contrary to Mr Qazi's wishes. He wanted to continue to occupy the house as his home.
113. It is accepted, however, that the effect in law of the service of a notice to quit by one joint tenant who jointly with another holds a tenancy of property terminates the tenancy. The effect, therefore, of the service by Mrs Qazi of the notice to quit terminated the secure tenancy under which Mr Qazi was occupying the house. He had, thereafter, no property right that entitled him, as against the council, to remain in occupation.
114. Mr Qazi applied to the council for a new tenancy. His application was refused in July 1999. The council took the view that, as a single occupant, the accommodation was more than he needed. They wanted to allocate the house to one of the families on their lengthy housing list. In November 1999, in response to a repeated request from Mr Qazi , the council repeated their refusal to grant him a new tenancy. They asked him to vacate the house. Mr Qazi refused to vacate the house and, in March 2000, the council commenced possession proceedings in the county court. It is those proceedings that, via the Court of Appeal, have led to this appeal to your Lordships' House.
115. Mr Qazi could have tried to challenge, by judicial review, the council's decision to refuse to grant him a new tenancy of the house. But he did not do so. It may be he took the view that, in the circumstances pertaining in July and November 1999, the challenge would have been a hopeless one.
116. In 2000, however, a change in circumstances had occurred. Mr Qazi formed a relationship with a lady whom he married in October 1999 in an Islamic ceremony. She had a five year old son. Their marriage was later solemnized in a civil ceremony. By July 2000 they were all living together as a family in the house. The family was increased when Mr Qazi's new wife, Mrs Abida Qazi, gave birth to their child in December 2000. She applied to the council for the grant of a tenancy of the house to herself and Mr Qazi. The council's previous objection to Mr Qazi's application, namely, that the accommodation was more than a single occupant required, no longer applied. But the council refused her application. They placed her and Mr Qazi on their housing list but pointed out that there were many families above them on the list. They were not willing to accord Mr and Mrs Qazi priority over those other families. This decision, too, was not challenged in any judicial review application.
117. Meanwhile the possession proceedings brought by the council were continuing. Mr Qazi's defence has been throughout, and remains, that the council's claim for possession, and any possession order made by the court acceding to that claim, would be in breach of his rights under article 8 of the Convention. On 8 June 2001 Mr Recorder Williamson, sitting in the Watford County Court, rejected this defence and made an order for possession in favour of the council. He did so because, in his view, property in which a claimant had no legal or equitable right or interest could not constitute the claimant's "home" for article 8 purposes. On appeal, the Court of Appeal disagreed with this view. They held that the factual links between the claimant and the property sufficient or necessary for it to constitute his "home" for article 8 purposes did not include a legal or equitable right or interest in the property. They held that the possession proceedings constituted an interference with Mr Qazi's "home" so that article 8, contrary to Mr Recorder Williamson's view, was applicable. They therefore allowed Mr Qazi's appeal and remitted the case to the county court in order for the county court to decide whether the interference could be justified under article 8(2).
118. There appear, therefore, to be two issues for your Lordships. The first is whether the house, 31 Hutton Lane, Harrow, constituted Mr Qazi's "home" for article 8 purposes notwithstanding that he had no legal or equitable right or interest in the property. The second issue is whether, if the house did constitute Mr Qazi's "home", Mr Qazi can raise an article 8 defence to the council's claim for possession notwithstanding that, as against the council, he has no right under the ordinary law to remain in possession. In other words, can article 8 ever constitute a defence to a claim by an owner of property to recover the property where, article 8 apart, the defendant has no right to remain there?
119. Article 8 says that
120. The structure of article 8 is, in my opinion, very important. Paragraph 1 expresses a general principle, rather than a precise legal right: the words "the right to respect" are indicative of this. The object of the "right to respect" is home life in all its aspects: privacy, family, home, correspondence. Paragraph 2, on the other hand, expresses, with precision, the gateways through which a public authority that interferes, or proposes to interfere, with the paragraph 1 "right to respect" for home life must pass if the interference is to be permissible. The interference must always be in accordance with the law. But it must also be necessary in a democratic society for one or other of the specified reasons. The obviously pertinent reason for the purposes of the present case is "for the protection of the rights and freedoms of others". But, of course, one never gets to a consideration of the gateways unless the interference complained of is capable of constituting interference with the "right to respect" for home life.
121. Before turning to the Strasbourg and domestic case law relevant to the issues before the House, it is helpful to reflect on the intended purpose of the European Convention on Human Rights. It was the progeny in a European context of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948. It (the Convention) recited that "[the Universal] Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared" and that the signatory governments (to the Convention) were resolved "to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration". I have referred to these recitals as a preliminary to making the point that not one of the rights declared in the Universal Declaration and not one of the rights and freedoms enshrined in the Convention involves, in express terms at least, any diminution of (or encroachment on) the property rights of others. The reverse is the case. Article 17(2) of the Universal Declaration says that "No one shall be arbitrarily deprived of his property". This is reflected in article 1 of the First Protocol to the Convention which secures the right of every "natural or legal person" to the peaceful enjoyment of his possessions. Any interference with this right must be "in the public interest and subject to the conditions provided for by law ."
122. As to the right to respect for home life provided by article 8 of the Convention, its progenitor is article 12 of the Universal Declaration which says that
Neither this language, nor the language of article 8 can, in my opinion, be read as authorising any deprivation of the property rights of others.
123. The Universal Declaration and the Convention were the product of the horrors of fascism which led to World War II and the Holocaust. One of the recitals to the former records that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind". The intention of these instruments was to enshrine fundamental rights and freedoms. It was not the intention to engage in social engineering in the housing field. It was, in 1948 and 1950, when these instruments came into being, and it still remains, the province of individual signatory states to decide for themselves what social housing legislation to introduce. Thus, if a signatory state chose not to provide any security of tenure to residential tenants, so that on the expiry of every tenancy the landlord would become entitled to recover possession, this state of affairs would offend neither article 12 of the Universal Declaration nor article 8 of the Convention. The recovery by the landlord of possession of his property, the ex-tenant having no right to remain there, would not be "arbitrary" (see article 12) nor would it be indicative of any lack of respect for the tenant's home life. It would simply be the recovery by the landlord of his property. The tenant's home life at the property would throughout have been subject to the possibility of having to move out on the expiry of the tenancy. Article 8 would not alter the position.
124. Nor would recovery by a property owner of his property from a squatter/occupier who had made it his home be in any different state. If the occupier had been in adverse possession for 12 years, he would have acquired a title by adverse possession and be entitled to remain. Article 8 would not be relevant. The disentitled owner might make a complaint under article 1 of the First Protocol but would fail. The divesting operation of the Statutes of Limitation would be justifiable as being in the public interest etc (see J A Pye (Oxford) Ltd v Graham  1 AC 347 and, in the Court of Appeal,  Ch 804). But if the home occupier had been in possession for less than 12 years he would have no right as against the owner to remain. The recovery by the owner of his property would not be arbitrary nor would it evidence any lack of respect for the occupier's home life. His home life at the property would have always been subject to the possibility of eviction by the owner.
125. It is, of course, the case that the United Kingdom, in common, I expect, with all other signatories to the Convention has enacted elaborate social housing legislation. The degree of security of tenure provided to tenants of residential property on the expiry of their tenancies is highly complex. There are assured shorthold tenancies, secure tenancies, non-secure tenancies, introductory tenancies, service tenancies, furnished tenancies and, no doubt, others. The manner in which these tenancies can be brought to an end varies and depends on the contents of the relevant legislation. The respective rights of landlord and tenant, after termination of the tenancy, similarly depend on the content of the legislation. If, under the relevant provisions of the relevant legislation, the tenant has no right to remain in possession, the case is no different from that in which there is no relevant legislation at all. If, pursuant to the provisions of the relevant legislation, the tenant is entitled to remain in possession after the termination of his tenancy, there will have been a corresponding diminution of the landlord's property rights. This diminution will put article 1 of the First Protocol into play. But social housing legislation of this character is well justifiable on the public interest grounds provided for by the article (c/f James v United Kingdom (1986) 8 EHRR 123). If, on the other hand, the tenant has no right to remain in possession as against the landlord he cannot claim such right under article 8. To hold otherwise, to hold that article 8 can vest property rights in the tenant and diminish the landlord's contractual and property rights, would be to attribute to article 8 an effect that it was never intended to have. Article 8 was intended to deal with the arbitrary intrusion by state or public authorities into a citizen's home life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory state had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary.Strasbourg case law
126. I start with S v United Kingdom (1986) 47 DR 274 (EComHR). The case concerned a homosexual couple living together in a house of which one of them was the tenant under a secure tenancy. The tenant died. The local authority landlord sought to recover possession from the survivor. The survivor's defence in the domestic courts was that she was entitled under section 30 of the Housing Act 1980 to succeed to her deceased partner's secure tenancy. Section 30 gives a right of succession to a surviving occupier where the survivor is a spouse or member of the family of the deceased tenant. But the contention that a homosexual partner could be a spouse or a member of the family of the deceased tenant for section 30 purposes was not accepted, a possession order was made and she was evicted. She then applied to Strasbourg on the ground of a breach of her Convention rights. She claimed first, that "respect for her private and family life has been denied" and that her "eviction was not necessary on any ground enumerated within article 8(2)" (see p 277). She claimed also under article 14, that she had been discriminated against in relation to her rights under article 8. The Commission said that "any interference which there may have been with the applicant's private life falls to be considered in the context of her home" (p 278) and then said:
127. The cited passage has been much criticised, but I think it has been misunderstood. The Commission were not, in my view, seeking to prescribe the features of occupation of premises that would enable the premises to constitute an individual's "home" for article 8 purposes. S had been lawfully occupying the house as her "home" by permission of and with her deceased partner. But after the death of the partner the local authority owner wanted to recover possession and S could not as against the owner, invoke article 8 rights. This, I think, is what the Commission meant in saying "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". The Commission cannot be taken to have meant that the applicant could not, after the death of her partner, have asserted article 8 rights against any bugging of her telephone, any intrusion on her privacy by long range photography or any like invasions of her home life by third parties or, indeed, by the local authority itself. The Commission was commenting on a recovery of possession by an owner entitled to possession. Unless it could have been said that article 8 conferred some countervailing property rights on S and correspondingly diminished the local authority's property rights, thereby amending in favour of S the relevant housing legislation, article 8 was simply irrelevant to the local authority's right to recover possession. No such argument was addressed to the Commission. If it had been it should, in my opinion, have failed for the reasons I have already given.
128. The correctness of the Commission's approach to S's article 8 objection to the local authority's right to recover possession can be tested by considering the position if the deceased tenant in her lifetime had asked S to leave. Assume that S had no contractual or equitable rights under the ordinary law. Could she have contended that her partner's request that she leave offended her "right to respect" for her home? In my opinion, plainly not, unless it were to be said that article 8 had given S some interest in the house and correspondingly diminished the partner-tenant's proprietary interest. If article 8 can be raised against the landlord by an occupier with no proprietary or contractual right as against the landlord, it must equally be capable of being raised against the tenant by an occupier with no proprietary or contractual right against the tenant.
129. Immediately after the passage I have cited, the Commission went on, at p 278:
Just so, but what the Commission was saying, in effect, was that the landlord's legal right to recover possession of its property at the end of the tenancy prevented article 8 from providing any assistance to S. A possession order was necessary in order to give effect to, "for the protection of", that right to possession. How else could it have been protected?130.
Di Palma v United Kingdom (1986) 10 EHRR 149 was a case in which the landlord (a private landlord, not a local authority) had forfeited the tenant's lease on account of her failure to pay a service charge. The landlord then brought possession proceedings in the county court. Subject to the question of relief from forfeiture the tenant had no defence to the action. The issue was whether either the county court or the High Court had jurisdiction to grant that relief. If there had been jurisdiction to grant relief, relief would, on the facts, have been granted. But the county court's jurisdiction to grant relief from forfeiture was statutory and was very limited. On the facts of the case it was not exercisable. The High Court's jurisdiction to grant relief had been removed by the statute which had conferred the limited jurisdiction on the county court (see section 191, County Courts Act 1959). So the tenant fell in a black hole, was unable to obtain relief from forfeiture and lost her flat, notwithstanding that the forfeiture was a disproportionate penalty for her failure to pay the service charge: (see Di Palma v Victoria Square Property Co Ltd  Ch 346, 362A-B and 368E- 369B). The tenant applied to Strasbourg complaining, inter alia, that the possession order was in breach of her article 8 rights. She said that "her eviction from her home constitutes an unjustified interference with the right to respect for her home protected by article 8" (p 155). But the Commission held, at pp 155 - 156, that
They held her article 8 complaint to be manifestly ill-founded. It is important to notice that this was not a conclusion to which the Commission came on grounds of proportionality. Otherwise they must have found in favour of the applicant. They held in effect, as they had done in S v United Kingdom, that article 8 rights could not suffice against an owner of property with an otherwise unimpeachable right to possession.
131. It is said that the approach of the Strasbourg tribunals in cases such as Gillow v United Kingdom (1986) 11 EHRR 335, Buckley v United Kingdom (1996) 23 EHRR 101, Mabey v United Kingdom (1996) 22 EHRR CD 123 and Chapman v United Kingdom (2001) 33 EHRR 399 is inconsistent with that of the Commission in S v United Kingdom and Di Palma v United Kingdom. My Lords, I think not. None of these cases involved a claim by the owner of the premises in question against an occupier who, vis-à-vis the owner, had no right to remain. Gillow was a case in which the premises were in Guernsey and the owner, Mr Gillow, needed a licence in order to be allowed to reside there. He applied for the necessary licence but was refused. The refusal, he contended, interfered with his article 8 right to respect for his home. One of the issues was whether the premises did constitute his home. He had lived there at one time but for a long period had lived abroad. The court held that he had "retained sufficient continuing links" with the premises for it still to constitute his home for article 8 purposes (see para 46). The court found that the interference that the refusal of the licence and the consequent prosecution of Mr Gillow for unlawful occupation constituted was disproportionate to the legitimate aim pursued and consequently was not justifiable under article 8(2) (see para 58). This conclusion was reached after a careful consideration of the purposes of the Guernsey legislation requiring certain people to obtain residence licences and of the various factors taken into account by the Guernsey authorities in deciding whether or not to grant Mr Gillow a licence. There is a very striking contrast between this balancing process that the Court undertook and the absence of any such balancing process in S v United Kingdom or in Di Palma. The contrast does not indicate that the Commission's approach was wrong. It indicates that the article 8(2) balancing process is inappropriate where possession is being claimed by the owner of the property against whom the occupier has no right to remain.132.
Buckley v United Kingdom, Mabey v United Kingdom and Chapman v United Kingdom were cases where gypsies had acquired land on which to stand the caravans in which they lived. They began using the land, their own land, for that purpose, but the standing of caravans on the land was unlawful under the planning laws. The planning authorities brought proceedings to prevent these breaches of the planning laws. The land/caravan owners contended that to bring these proceedings was an interference with their article 8 rights to respect for their homes. It was contended, in answer, that because the establishing of their homes was in breach of the planning law and therefore unlawful article 8 could not apply. This contention was rejected. In Buckley the European Court quoted the Commission which said, at p 115, para 63:
133. It has been suggested that this test of what constitutes a "home" for article 8 purposes invalidates what the Commission had said in S v United Kingdom. My Lords, I do not think so. In S v United Kingdom the Commission was concentrating on the question whether the recovery by a landlord of possession of premises after the expiry or determination of the tenancy under which the premises had been occupied as a home constituted an interference with the right to respect for the occupier's home guaranteed by article 8. The Commission held it did not and, in explaining why not, said, at p 278, para 4, that " . the local authority was entitled to possession so that the house could no longer be regarded as a home ." (emphasis added). In Buckley, by way of contrast, as in the other gypsy cases, the issue was whether the unlawfulness under the planning laws of the applicant-owner's occupation of the property in question disqualified the occupation from being occupation of a "home" for article 8 purposes. The Commission formulated the test in the way it did in order to eliminate the unlawfulness of the occupation as a relevant factor, let alone a determinative factor, in deciding whether the occupation was of a "home". There was no suggestion, however, by the European Court in Buckley that the Commission's approach in S v United Kingdom needed to be re-considered or was wrong. Buckley does not constitute any authority at all for the proposition that a home-occupier can resist a possession action by the owner of the property on article 8 grounds.
134. For my part I think that the first passage I cited from the Commission's judgment in S v United Kingdom should, in the light of Buckley, be re-worded. I think the Commission should have said, simply, that the claim by the local authority landlord to recover possession of the house after the death of the tenant did not constitute an interference with S's right to respect for her home since she no longer had, vis-à-vis the landlord, any right to remain there. This, I think, is what the Commission meant.
135. In Wood v United Kingdom (1997) 24 EHRR CD 69 the Commission adopted an approach to article 8 consistent with their approach in S. The case was one in which the applicant was a mortgagor who had fallen into arrears with her mortgage payments. The mortgagee, exercising its powers under the mortgage, had taken possession of the house, the mortgaged property. The applicant complained that the repossession constituted a breach of her article 8 right to respect for her home. The Commission rejected her claim. It said, at pp 70 - 71, that the re-possession
There is no suggestion that this decision was reached by weighing up the applicant's interest in retaining her home against the mortgagee's interest in enforcing its security. The Commission's conclusion makes it clear, in my opinion, that a mortgagor cannot invoke article 8 in order to diminish the contractual and proprietary rights of the mortgagee under the mortgage. Article 8 is simply not applicable.