Harrow London Borough Council v Qazi
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD MILLETT,LORD SCOTT OF FOSCOTE |
| Judgment Date | 31 July 2003 |
| Neutral Citation | [2003] UKHL 43 |
| Date | 31 July 2003 |
| Court | House of Lords |
[2003] UKHL 43
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Millett
Lord Scott of Foscote
HOUSE OF LORDS
My Lords,
By article 8(1) of the European Convention on Human Rights "Everyone has the right to respect for … his home …". This appeal concerns the meaning of that provision and its application to the facts of this case.
Those facts are simple. The respondent, Mr Qazi, lived with his then wife Mrs Saman Qazi and their daughter in a two-bedroomed house at 31 Hutton Lane, Harrow Weald, Middlesex. The London Borough of Harrow, the appellants, were (as they still are) freehold owners of the house, and let it to Mr Qazi and Mrs Saman Qazi as joint tenants under a secure tenancy beginning in January 1992. In 1998 Mrs Saman Qazi and their daughter went to live elsewhere, and in February 1999 Mrs Qazi gave the council four weeks' written notice to quit in accordance with the express terms of the tenancy agreement. This notice, it is common ground, had the effect of bringing the tenancy to an end on 22 March 1999. The council informed Mr Qazi that the tenancy had come to an end and invited him, if he wished, to apply for a sole tenancy of the house, making it clear that the application might not succeed. He did apply, but his application was refused by the council in July 1999 on the ground that he was not, as a single person, entitled to family-sized accommodation. In November 1999 the council again told Mr Qazi that he would not be granted a tenancy of the house, and he was further told that possession proceedings would be begun if he failed to vacate the house.
Mr Qazi did not vacate the house and in March 2000 the council issued proceedings seeking possession. In the course of the proceedings Mr Qazi made it known that he had lived in the house with Mrs Abida Qazi and her five-year old son since June or July 2000, that they had been married in an Islamic ceremony in October 1999 and that the marriage had been solemnised in a civil ceremony in July 2000. Mr Qazi sought a review by the council of its decision not to grant him a sole tenancy of the house, but unsuccessfully. Mrs Abida Qazi, pregnant with another child born in December 2000, applied to the council for the grant of a new tenancy to herself and Mr Qazi, but no such grant was made.
In the possession proceedings Mr Qazi based his defence (so far as now relevant) on the contentions that
The action came on for trial in the Watford County Court sitting at Luton before Mr Recorder Williamson. He held that the effect of Mrs Saman Qazi's notice to quit had been to determine the whole of the previous joint tenancy; that the tenancy had not come to an end because of any decision made by a public authority but by the act of one of the joint tenants; that since expiry of the notice Mr Qazi had had no legal or equitable right or interest in the house and thus had none at the time when action had been brought; and that accordingly the house was not Mr Qazi's home within the meaning of article 8(1) of the Convention and that article was not engaged. The recorder did not therefore consider the issue of justification raised under article 8(2) of the Convention and made the possession order sought.
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(a) in seeking a possession order the council had failed to give effect to his right to respect for his home as required by article 8 of the Convention;
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(b) the council's interference with his right was not justified under article 8(2) of the Convention; and
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(c) the making of a possession order would be a breach of article 8.
Mr Qazi challenged the recorder's decision successfully in the Court of Appeal, where Arden LJ gave the leading judgment, Peter Gibson LJ agreed giving brief reasons of his own and Mantell LJ concurred: [2001] EWCA Civ 1834; [2002] HLR 276. In paragraph 47 of her judgment, Arden LJ defined the question of law before the court as being
"whether a former tenant whose tenancy has come to an end by operation of law can, after that time, have a right to a home for the purposes of Article 8 of the Convention".
After a close examination of the Strasbourg jurisprudence she gave an affirmative answer to that question, rejecting the argument that article 8 is not engaged where a former tenant lacks any legal or equitable right or interest in the house. In paragraph 57 she concluded that Mr Qazi "did have a right to a home for the purposes of Article 8 when the possession proceedings were served on him".
I would respectfully question whether Arden LJ was quite right to define the issue in terms of "a right to a home", since the European Court of Human Rights has made clear that article 8 does not in terms give a right to be provided with a home and does not guarantee the right to have one's housing problem solved by the authorities: see Chapman v United Kingdom (2001) 33 EHRR 399, paragraph 99; Marzari v Italy (1999) 28 EHRR CD 175, 179; O' Rourke v United Kingdom (26 June 2001, Application No 39022/97). Thus in the present case the two questions which in my opinion arise are
(1)
whether (when proceedings were issued and possession was ordered) the house at 31 Hutton Lane was Mr Qazi's home within the meaning of that expression as used in article 8 of the Convention; and, if so,
(2)
whether what the council or the court did or proposed to do infringed his right to respect for his home.
If both questions are answered in Mr Qazi's favour there arises the issue of justification, which the recorder did not have to address and which the Court of Appeal remitted to the county court. If that stage is reached, the issue of justification turns on the application of article 8(2) of the Convention:
"There shall be no interference by a public authority with the exercise of this right [here, the right to respect for one's home] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
It is convenient to begin by considering the two questions as formulated above.
The first question
The European Convention for the Protection of Human Rights and Fundamental Freedoms was an attempt to identify the rights and freedoms most central to the enjoyment of human life in civil society and to give those rights and freedoms an appropriate measure of protection among member states of the Council of Europe. Not surprisingly, the need for some protection of the home was recognised in the Convention, since few things are more central to the enjoyment of human life than having somewhere to live. On a straightforward reading of the Convention, its use of the expression "home" appears to invite a down-to-earth and pragmatic consideration whether (as Lord Millett put it in Uratemp Ventures Ltd v Collins [2001] UKHL 43, [2002] 1 AC 301, paragraph 31) the place in question is that where a person "lives and to which he returns and which forms the centre of his existence", since "home" is not a legal term of art and article 8 is not directed to the protection of property interests or contractual rights.
This approach to the meaning of "home" is, I think, fortified by consideration of article 8(1) as expressed in other languages: "son domicile", "proprio domicilio", "su domicilio" and "seiner Wohnung", for example, all direct attention to the place where a person lives. Save in one case mentioned below (paragraph 10) this has been the approach of the Strasbourg institutions also. In Gillow v United Kingdom (1986) 11 EHRR 335, paragraph 46, the Court held that the house in question was the applicants' home because although they had been absent from Guernsey for many years they had not established any other home elsewhere in the United Kingdom and had retained "sufficient continuing links" with the house for it to be considered their home for the purposes of article 8. This test was repeated and elaborated by the Commission in Buckley v United Kingdom (1996) 23 EHRR 101 at 115, paragraph 63:
"'Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links. The factor of 'unlawfulness' is relevant rather to considerations under paragraph 2 of that provision of 'in accordance with law' and to the balancing exercise undertaken between the interests of the community and those of the individual in assessing the necessity of any interference".
The Commission repeated the substance of this passage in Mabey v United Kingdom (1996) 22 EHRR CD123, 124, and in O' Rourke v United Kingdom (26 June 2001, Application No 39022/97) the Court once again insisted on an individual's need to show sufficient and continuing links with a place in order to establish that it is his home for purposes of article 8.
In none of these cases, as Mr Arden QC for the council correctly submitted, were the facts indistinguishable from those of this case. In some the applicant had a proprietary interest in a house (Gillow) or land (Buckley, Mabey), but could not lawfully live in the house or on the land. In O' Rourke the applicant claimed as his home a hotel room which he had occupied for less than a month at the discretion of the proprietors before being evicted: in this case the Court had "significant doubts over whether or not the applicant's links with the hotel room were...
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