Harrow London Borough Council v Qazi

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PETER GIBSON,LADY JUSTICE ARDEN,LORD JUSTICE MANTELL
Judgment Date03 December 2001
Neutral Citation[2002] UKHRR 316,[2001] EWCA Civ 1834
Docket NumberB2/2001/1404
Date03 December 2001

[2001] EWCA Civ 1834

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LUTON COUNTY COURT

(Mr Recorder Williamson)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Peter Gibson

Lord Justice Mantell

Lady Justice Arden

B2/2001/1404

Tarik Mahmood Qazi
Defendant/Appellant
and
The Council Of The London Borough Of Harrow
Claimant/Respondent

MR JAN LUBA QC and MR EDWARD FITZPATRICK (Instructed by The Blackwell Partnership, 1A Central Parade, Station Road, Harrow, Middlesex HA1 2TW) appeared on behalf of the Appellant.

MR DAVID MATTHIAS (Instructed by Harrow Legal Services, Civic Centre, Harrow, Middlesex HA1 2UH) appeared on behalf of the Respondent.

Monday, 3rd December 2001

LORD JUSTICE PETER GIBSON
1

I will ask Arden LJ to give the first judgment.

LADY JUSTICE ARDEN
2

This is an appeal by the defendant in this action, Mr Tarik Mahmood Qazi, against the order of Mr Recorder Williamson dated 8th June 2001 whereby Mr Qazi was ordered to give up possession of 31 Hutton Lane, Harrow Weald, Middlesex (which I will call "the premises") on 11th July 2001. The Recorder made consequential orders that Mr Qazi should pay £3,056.74 for unpaid rent and use and occupation of the property, and in addition the sum of £10.74 daily until possession was delivered up, being the charge for use and occupation. He was also ordered to pay the costs of the respondents to this appeal (to whom I shall refer as "Harrow"). The application for permission to appeal came before me on paper, and I directed that the application should be heard in open court on notice to the respondents, with the appeal to follow if permission was granted.

3

The Recorder set out the background as follows in his judgment:

"1. In these proceedings the Council of the London Borough of Harrow ('the claimant') seeks possession of land at premises known as 31 Hutton Lane, Harrow Weald, Middlesex HA3 6RE ('the premises') of which it is and was at all material times the freehold owner. The premises are a two-bedroom residential dwelling house. By agreement in writing dated 15th January 1992 the claimant let the premises to Tarik Mahmood Qazi, the defendant, and his then wife, Saman Qazi, as joint secure tenants pursuant to Part IV of the Housing Act 1985 with effect from 20th January 1992. 2.The defendant and his wife lived in the premises with their daughter until 1998 when Saman Qazi moved out with their daughter and they went to stay with her mother. It was an express term of the agreement that either joint tenant could terminate the tenancy by serving a written notice to quit on the claimant giving four weeks' notice and expiring on a Monday, being the start of a new period of the tenancy. On 19th February 1999 Saman Qazi served on the claimant a written notice to quit which expired on 22nd March 1999. The tenancy, therefore, came to an end on this date.

3.On 26th May 1999 Mrs C Vickers, a housing management officer employed by the claimant, wrote to the defendant. The letter was delivered by hand, and in it Mrs Vickers informed the defendant that the tenancy had come to an end on 22nd March 1999. She enclosed an application form for the defendant to complete if he wished to apply for sole tenancy of the premises. She said that if he applied a decision would be made to his application as soon as possible after he had returned the form, but she could not guarantee that he would be granted a tenancy of the premises or any other property. An application for a sole tenancy was made by the defendant, but was refused by the claimant on 16th July 1999 when Mrs Vickers wrote to the defendant. She stated that the application had been refused 'on the basis that, as a single person, you are not entitled to family sized occupation'.

4.On 16th November 1999 the claimant's housing manager, Mr David Hooper, wrote to the defendant. He advised the defendant that the Head of Housing for Environmental Health Services had decided he should not be granted a tenancy of the premises and possession proceedings should be commenced. Mr Hooper informed the defendant of his right to make an application for accommodation via the housing register. Mr Hooper went on in his letter to request the defendant to vacate the premises immediately and return the keys to the Housing Department. He said that he had instructed Council's legal services to obtain an order for possession."

4

These proceedings were begun on 13th March 2000. In his defence Mr Qazi admitted that he was in occupation of the property. He stated that he resided in the property with his wife, Mrs Abida Qazi, with their five-year old son; that they were married by an Islamic ceremony in October 1999, with the legal ceremony being performed on 27th July 1999. Mr Qazi, Mrs Qazi and her five-year old son had lived in the premises together from June or July 2000. It also appeared from the evidence that Mrs Qazi was pregnant. Accordingly it is clear that Mrs Abida Qazi and her son had not moved into the property until after Mr Qazi had been given notice to quit the premises. That occurred on about 26th May 1999.

5

Mr Qazi also alleged that, in seeking a possession order, Harrow had acted in breach of Article 8 of the European Convention on Human Rights, and that since the property was no longer under occupied such interference was not justified under Article 8(2) of the Convention. He also contended that the making of a possession order would amount to a breach of Article 8. He also contended that there had been delay in processing the claim to housing benefit and that he should receive full housing benefit for the relevant period. In fact it appears that his claim for back-dated benefit has not been fully back-dated.

6

The defence which Mr Qazi filed was not filed until 7th December 2000, but it appears that Harrow learned of Mr Qazi's remarriage on 6th June 2000. Reference is made in the evidence to Harrow's housing allocation policy and to evidence that was given at the hearing before the Recorder about that policy, but the policy has played no part on this appeal. Accordingly I do not propose to refer to it.

7

The Recorder held that notice to quit by one joint tenant was sufficient in law to determine the whole of the joint tenancy. He reached that conclusion on the basis of Hammersmith v Monk [1992] 1 AC 478. I should add that it is no part of the appellant's case to challenge that rule of law under Article 8. The Recorder further held that since 22nd March 1999 Mr Qazi had accordingly had no legal or equitable interest in the premises.

8

The Recorder went on to hold that the tenancy had terminated not by act of Harrow but by act of one of the joint tenants. Distinguishing the decision of Longmore J, as he then was, in R v Bracknell District Council (2001) 33 HLR 495, the Recorder held that Article 8(1) of the European Convention on Human Rights was not engaged. He held that the premises did not constitute Mr Qazi's home within the meaning of Article 8(1) because he had no legal or equitable interest or right in the premises and did not have any such interest at the time the possession proceedings were commenced. In addition, he rejected the argument that the possession proceedings amounted to interference with the defendant's right to a family life, that is his family life with his new wife and her son. He accepted the argument of counsel for Harrow that interference with private life, as referred to in Article 8(1), involved interference with personal liberty or privacy, neither of which was applicable in his case. In the light of these conclusions, the Recorder did not consider the arguments based on Article 8(2).

9

On that appeal Mr Luba QC appears for the appellant. He has made a number of submissions. He submits that in order to meet the case of the respondent on this appeal, he has, in effect, to prove a negative that is the converse of the proposition put forward by the respondent that the starting point for determining whether a person has a home for the purposes of Article 8 is whether that person has a legal right to be there or a legal interest in the property or the land on which it stands.

10

To prove the negative Mr Luba has taken us to all the reported or published authorities in the European Court of Human Rights and the European Commission on Human Rights which he considers relevant. I will now turn to these cases. We were taken to them in chronological order.

11

First in point of time is Cyprus v Turkey, a decision of the European Commission [1976] 4 EHRR 482. But I need not mention that case further because it is common ground that it is of limited assistance.

12

The next case is Wiggins v United Kingdom (1978) 13 DR 40. In that case the applicant owned a house in Guernsey, but ceased, under Guernsey law, to be entitled to occupy it after his wife left him. The European Commission considered that the property remained his home. I do not think I need go further into that case.

13

The next case chronologically is S v United Kingdom (1986) 47 DR 274. In this case the applicant was a lesbian who had lived with her partner in premises of which her partner was the tenant. After three years or so the partner died and the applicant had no right by law to apply for a continuation of the tenancy in her own name. In paragraph 4 of the decision the Commission said this:

"4.The applicant alleges that she has been evicted from her home for no other reason than that she was of the wrong sex to have a claim under domestic law to succeed to the tenancy of her home.

The Commission notes that the applicant was occupying the house, of which her partner had been the tenant, without any legal title whatsoever....

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