JL, R (on the application of) v Secretary of State for Defence

An occupier may exceptionally invoke article 8 against enforcement of an existing possession order. A later challenge will usually be an abuse where proportionality was, or could have been, determined in the possession proceedings. It may proceed where a fundamental change of circumstances creates a new article 8 issue, or where the occupier previously raised article 8 but binding law prevented its determination.

The threshold for resisting enforcement remains very high. The court balances the consequences of eviction against established property rights and the public authority’s legitimate functions. A conventional judicial review challenge is not automatically displaced by proportionality. It must be decided separately where it raises a distinct public law issue.

The appellant and her family had occupied Ministry of Defence premises for many years after the appellant’s husband left the Army. The family had serious physical and mental health needs. A possession order was made in 2009 when binding authority prevented article 8 from supplying a defence, and permission to appeal was refused.

After the law changed, the respondent decided to enforce the order. The Administrative Court dismissed the appellant’s judicial review claim in [2012] EWHC 2216 (Admin). The appeal raised whether the enforcement decision was unlawful for failure to consider relevant matters, whether article 8 could be invoked at the enforcement stage, and whether eviction was proportionate.

1. Appeal dismissed. The Minister’s decision to enforce the possession order was lawful under domestic public law. The respondent had no continuing responsibility to house the family, whereas the local authority had accepted its housing duty. The family’s circumstances had not materially changed since the possession order. In that context, enforcement of an established legal right did not require a further searching or intensive review merely because the respondent had voluntarily delayed enforcement.

2. An article 8 proportionality challenge may exceptionally be raised at the enforcement stage. Ordinarily, proportionality is determined in the possession proceedings at the occupier’s request. Re-litigation at enforcement, or first-time reliance on a matter which could and should have been raised earlier, will generally be an abuse of process. A later challenge may nevertheless be proper where a substantial change of circumstances creates a new article 8 issue.

3. This was an exceptional case. The appellant had raised article 8 in the possession proceedings, but the binding law then prevented it from providing a defence. The law changed before eviction, and no earlier domestic proceeding had afforded the proportionality review now recognised as necessary. The judge was therefore entitled to undertake that review, although such review at the enforcement stage will be very rare.

4. Eviction was proportionate. The court recognised the medical risks associated with a forced or double move and the possibility that temporary accommodation would not possess every desired feature. Those considerations were outweighed by the respondent’s established property rights, its proper management of service accommodation and resources, and the local authority’s accepted statutory responsibility to accommodate the family. The high threshold governing an article 8 defence applied with at least equal force at enforcement.

5. Per Arden LJ, with whom Sullivan and Briggs LJJ agreed, a conventional judicial review challenge is not automatically displaced by an article 8 proportionality defence. It may add nothing where both challenges concern the same matters. It remains independently available where it raises a distinct issue, such as improper purpose. The alleged defects in the Ministerial Submission therefore required separate consideration, but did not invalidate the decision.

• Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the dismissal of both the domestic public law challenge and the article 8 proportionality challenge.
• Administrative Court: In [2012] EWHC 2216 (Admin), Ingrid Simler QC, sitting as a deputy High Court judge, dismissed the judicial review claim after conducting an article 8 proportionality review.
• Administrative Court possession proceedings: Collins J made the possession order on 5 May 2009. Permission to appeal was subsequently refused.