Margaret Langley considers article 8 of the ECHR in the context of possession proceedings


The question of whether a defendant to a claim for possession can rely upon the protection of article 8 of the European Convention on Human Rights (ECHR) - the right to respect for private and family life - as a defence has concerned the higher courts in a series of decisions in recent years.



In Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 98, Mr and Mrs Qazi were joint tenants of a council house. Their marriage broke down and Mrs Qazi gave four weeks' notice to terminate the tenancy. Mr Qazi applied for a new tenancy in his sole name but this was refused on the basis that he was single and should not have family accommodation. Mr Qazi remarried and lived in the property with his new wife and her son.



The council commenced possession proceedings and Mr Qazi relied on article 8 as his defence. On 31 July 2003, the House of Lords held by a majority that article 8 could not be relied upon to defeat proprietary or contractual rights to possession and accordingly the council was entitled to possession. On 24 March 2004, a committee of the Strasbourg court dismissed a challenge to this decision as inadmissible, on the grounds that it did not disclose any appearance of a violation.



On 27 May 2004, the Strasbourg court decided Connors v UK [2004] ECHR 66746/01, [2005] 40 EHRR 189, in which it upheld a claim for breach of article 8 and awarded ¤14,000 as non-pecuniary damages. Mr Connors and his family were gypsies who had occupied a local authority gypsy site under licence for 16 years. The licence forbade them from causing a nuisance to other occupiers. The council gave Mr Connors a written warning concerning the alleged anti-social behaviour of his children, followed by the service of a notice to quit. The subsequent possession proceedings were adjourned pending an application for judicial review, which failed, and a possession order was made.



These decisions were alleged to be irreconcilable by the appellants in the conjoined appeals to the House of Lords in Kay & others v London Borough of Lambeth LBC and Leeds City Council v Price & others [2006] UKHL 10, [2006] 4 All ER 128. In Kay, the council had an arrangement with a housing association to accommodate homeless people who were otherwise ineligible for housing. This was converted into a lease and the housing association then granted licences to the occupiers. Following another decision, the council terminated its lease to the housing association and brought possession proceedings against the occupiers. In Price, the council issued possession proceedings against a family of travellers two days after they moved on to a recreation ground without authority. The defendants in both cases sought to rely upon article 8 as their defence.



The House of Lords held that the Qazi principle decided in ruling Qazi that article 8 could never found a defence to a claim for possession brought in accordance with the domestic law of property had to be modified in the light of Connors, but that the exception should be narrowly defined.



Lord Hope held that where the requirements of the law have been satisfied and the right to recover possession is unqualified, the court could only refrain from making a possession order where:

l A seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 when the county court should either give effect to the law in a way which is compatible with article 8 or adjourn the proceedings to enable the compatibility issue to be dealt with in the High Court; or

l If the defendant wishes to challenge the decision of the local authority to seek to recover possession as an improper exercise of its powers at common law on the ground that it was a decision no reasonable person would consider justifiable, he should be permitted to do this provided the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461.



He concluded that the decision in Qazi was correct and the decision in Connors was not incompatible with the majority view in Qazi.



In Desnousse v London Borough of Newham LBC [2006] EWCA Civ 547, [2007] 2 All ER 218, Mrs Desnousse applied to the local authority for rehousing when she and her children were to be evicted from a council flat of which her husband had been the sole tenant. She was placed in temporary self-contained accommodation under the local authority's statutory duty under section 190 of the Housing (Homeless Persons) Act 1996. The homelessness regime under that Act contains provision for the review of the local authority decision, appeal to the county court on a point of law and the ability of a duty on the authority to provide accommodation during the process.



The majority held that article 8 did not require that the procedural safeguards of the Protection from Eviction Act 1977 should be applied in such circumstances, although Lord Justice Lloyd, dissenting, would have judgment held that not to extend section 3 of the 1977 Act in such circumstances was not compatible with the occupiers' rights under article 8.



In Doherty v Birmingham City Council [2006] EWCA Civ 1739 [2006] All ER(D) 349 (Dec), the Doherty family were travellers who occupied the site under a licence from Birmingham City Council. Notice to quit was served and possession proceedings were commenced. It was said that the presence of the family deterred other travellers from going there and the site was severely under-utilised. Mr Doherty had no security of tenure and relied on the protection of article 8.



Lord Justice Carnwath reviewed the authorities of Qazi, Connors and the appeals in Kay and Price. He held that the House of Lords in Kay and Price decided that there were two possible 'gateways'; on the pleadings, there was no arguable basis for asserting that the decision could have been successfully challenged under the law and the suggestion that the family's presence 'deterred' others was only one factor in the authority's assessment, which was well within the margin of appreciation allowed by the Strasbourg jurisprudence. Accordingly, the appeal was dismissed.



The result seems to be that while, in theory, where there is a serious challenge to the law under which a possession order is sought, there may be a successful defence under article 8, no possible example has been given of facts when this might arise and the approach of the higher courts is clearly cautious. It appears the courts are driven by a desire to uphold public authorities' rights to recover possession of property on public policy grounds.



District Judge Langley sits at Central London County Court