Qazi v London Borough Of Harrow Council

For the purposes of Article 8, “home” is an autonomous Convention concept. Whether a habitation is a person’s home depends on the factual circumstances, particularly the existence of sufficient and continuous links with it. A legal or equitable interest, tenancy, licence or other lawful entitlement is not a necessary condition.

Unlawful occupation is relevant principally to the justification and proportionality of interference under Article 8(2), rather than to whether Article 8(1) is engaged. Accordingly, the termination of a tenancy by operation of law does not automatically prevent the former tenant from continuing to have a home protected by Article 8. The issue of justification must then be determined separately.

Mr Qazi and his former wife were joint secure tenants of premises owned by Harrow. The former wife served notice to quit, thereby terminating the joint tenancy. Harrow subsequently refused Mr Qazi’s application for a sole tenancy and brought possession proceedings.

The Recorder held that Mr Qazi had no legal or equitable interest in the premises and that they were no longer his home for Article 8 purposes. He therefore did not consider whether the possession order was justified under Article 8(2). Mr Qazi appealed, raising the question whether a former tenant whose tenancy had ended by operation of law could still have a right to respect for his home.

1. Appeal allowed. The Court granted permission to appeal, allowed the appeal and remitted the case to the County Court to determine whether the interference with Mr Qazi’s right to respect for his home was justified under Article 8(2).
2. Lady Justice Arden held that the Strasbourg jurisprudence, particularly Buckley v United Kingdom (1996) 23 EHRR 101, established that “home” is an autonomous Convention concept. The relevant test is factual: whether there are sufficient and continuous links with the habitation.
3. The test does not require a legal or equitable interest, contractual right, licence or lawful occupation. Domestic concepts of landlord and tenant, licence and trespass should not be imported into the meaning of the Convention term. The reasoning in S v United Kingdom (1986) 47 DR 274, which appeared to treat the loss of a right to remain as ending the applicant’s home, no longer provided guidance in light of the later evolutive Strasbourg jurisprudence.
4. Lady Justice Arden treated the approach in Gillow v United Kingdom (1986) 11 EHRR 335 and O’Rourke v United Kingdom (Application No. 39022/97) as consistent with, and supportive of, the sufficient-and-continuous-links test. The absence or unlawfulness of a proprietary or possessory interest is instead relevant to the separate proportionality assessment under Article 8(2), as illustrated by Buckley and Chapman v United Kingdom (2001) 33 EHRR 399.
5. Lord Justice Mantell agreed. Lord Justice Peter Gibson also agreed, adding that actual residence is inherent in the concept of “his home”, although a residence to which an applicant intends to return may qualify. He rejected the proposed requirement of a legitimate legal or consensual interest and accepted that even a trespasser may, depending on the facts, have an Article 8 home.

• Court of Appeal (Civil Division): The appeal from the order of Mr Recorder Williamson dated 8 June 2001 was allowed. The case was remitted to the County Court to determine whether the interference was justified under Article 8(2).
• Luton County Court: The Recorder ordered Mr Qazi to give up possession, pay arrears and use-and-occupation charges, and pay costs, holding that the tenancy had ended and that Article 8(1) was not engaged.