Harrow London Borough Council v Qazi

The House considered the scope of article 8 of the European Convention on Human Rights (right to respect for one's home) in possession proceedings brought by a public authority landlord after the termination of a tenancy by notice to quit. The court applied the Strasbourg test that whether premises constitute a 'home' is an autonomous, factual question based on sufficient and continuous links rather than solely on proprietary title. It held that premises may remain a person's home even after a tenancy has been terminated by operation of law.

However, the majority concluded that where domestic law gives the landlord an unqualified right to possession on proof that a tenancy has been terminated by the tenant's notice, article 8 does not afford an arguable defence to resist an owner entitled to possession. In such cases the eviction will be in accordance with the law and necessary to protect the rights of others (article 8(2)), and there will normally be no need for the county court to undertake a separate proportionality inquiry under article 8 before making an order for possession.

Background and parties. The respondent, Mr Qazi, had occupied a two-bedroom council house as a joint secure tenant. His co-tenant (his then wife) served valid notice to quit which, by operation of the tenancy terms and domestic law, terminated the joint tenancy. The council informed him the tenancy had ended, refused his application for a sole tenancy and later issued possession proceedings. Mr Qazi continued to live at the property and raised a defence invoking article 8 of the European Convention on Human Rights.

Procedural history. The county court (Recorder Williamson) held the tenancy had been terminated and that the property was not the respondent's 'home' for article 8 purposes, and made a possession order. The Court of Appeal allowed the respondent's appeal, held the property was his home for article 8(1), and remitted the case to the county court to determine justification under article 8(2) ([2001] EWCA Civ 1834). The council appealed to the House of Lords.

Issues framed.

• whether premises occupied by a former tenant whose tenancy has ended by operation of law remain that person's 'home' under article 8(1);
• if so, whether the bringing and obtaining of possession proceedings by a public authority landlord constitutes an interference with article 8 rights for which justification under article 8(2) must be found, and whether the county court must in every such case undertake a proportionality inquiry before ordering possession;
• how domestic housing law and article 8 interrelate where the landlord has an unqualified right to possession after termination of the tenancy.

Court's reasoning and outcome. The House unanimously accepted the Strasbourg approach that 'home' is an autonomous concept decided by factual links and continuity, so the property remained the respondent's home despite termination of his tenancy. The majority (Lords Hope, Millett and Scott) held that this did not mean article 8 provided an arguable defence to possession where domestic law plainly entitled the landlord to immediate possession after lawful termination by the tenant: in such circumstances the interference is in accordance with the law and necessary to protect the rights of the owner under article 8(2). The majority therefore allowed the council's appeal and restored the county court possession order; they emphasised that exceptional cases might still exist but none was shown here. The minority (Lords Bingham and Steyn) would have upheld the Court of Appeal's remit, requiring the county court to consider justification under article 8(2).

Appeal allowed. The House held that while a dwelling occupied by a former tenant whose tenancy has been terminated by operation of law can still be that person's 'home' for the purposes of article 8(1), article 8 does not ordinarily afford an arguable defence to a claim for possession by an owner (including a public authority) who is entitled under domestic law to immediate possession. Where domestic law gives an unqualified right to possession on proof of termination, enforcement will normally be "in accordance with the law" and necessary for protection of the rights of others under article 8(2); accordingly the county court need not, in such ordinary cases, undertake a separate proportionality inquiry under article 8 before making a possession order.

County Court (Recorder Williamson) granted possession; appeal to the Court of Appeal allowed and the case remitted to the county court to consider justification under article 8(2) ([2001] EWCA Civ 1834). The council's appeal to the House of Lords was allowed ([2003] UKHL 43).