TARIK MAHMOOD QAZI v THE COUNCIL OF THE LONDON BOROUGH OF HARROW [2001] EWCA Civ 1834

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(Mr Recorder Williamson)
[2001] EWCA Civ 1834Case No B2/2001/1404Venue Royal Courts of Justice, Strand, London WC2, Monday, 3rd December 2001
Between
TARIK MAHMOOD QAZIDefendant/AppellantTHE COUNCIL OF THE LONDON BOROUGH OF HARROWClaimant/Respondent
Before
Lord Justice Peter GibsonLord Justice MantellLady Justice ArdenMR JAN LUBA QC and MR EDWARD FITZPATRICK (Instructed by The Blackwell Partnership, 1A Central Parade,Station Road, Harrow, Middlesex HA1 2TW) appeared on behalf of the Appellant.MR DAVID MATTHIAS (Instructed by Harrow Legal Services, Civic Centre, Harrow, Middlesex HA1 2UH)appeared on behalf of the Respondent.Date 3 December 2001
[1]Monday, 3rd December 2001 LORD JUSTICE PETER GIBSON: I will ask Arden LJ to give the first judgment.

LADY JUSTICE ARDEN:

[2]This is an appeal by the defendant in this action, Mr Tarik Mahmood Qazi, against the order of Mr Recorder Williamson dated 8th June 2001 whereby Mr Qazi was ordered to give up possession of 31 Hutton Lane, Harrow Weald, Middlesex (which I will call "the premises") on 11th July 2001. The Recorder made consequential orders that Mr Qazi should pay £3,056.74 for unpaid rent and use and occupation of the property, and in addition the sum of £10.74 daily until possession was delivered up, being the charge for use and occupation. He was also ordered to pay the costs of the respondents to this appeal (to whom I shall refer as "Harrow"). The application for permission to appeal came before me on paper, and I directed that the application should be heard in open court on notice to the respondents, with the appeal to follow if permission was granted.

The Recorder set out the background as follows in his judgment:

"1. In these proceedings the Council of the London Borough of Harrow (`the claimant') seeks possession of land at premises known as 31 Hutton Lane, Harrow Weald, Middlesex HA3 6RE (`the premises') of which it is and was at all material times the freehold owner. The premises are a two-bedroom residential dwelling house. By agreement in writing dated 15th January 1992 the claimant let the premises to Tarik Mahmood Qazi, the defendant, and his then wife, Saman Qazi, as joint secure tenants pursuant to Part IV of the Housing Act 1985 with effect from 20th January 1992. 2.The defendant and his wife lived in the premises with their daughter until 1998 when Saman Qazi moved out with their daughter and they went to stay with her mother. It was an express term of the agreement that either joint tenant could terminate the tenancy by serving a written notice to quit on the claimant giving four weeks' notice and expiring on a Monday, being the start of a new period of the tenancy. On 19th February 1999 Saman Qazi served on the claimant a written notice to quit which expired on 22nd March 1999. The tenancy, therefore, came to an end on this date. 3.On 26th May 1999 Mrs C Vickers, a housing management officer employed by the claimant, wrote to the defendant. The letter was delivered by hand, and in it Mrs Vickers informed the defendant that the tenancy had come to an end on 22nd March 1999. She enclosed an application form for the defendant to complete if he wished to apply for sole tenancy of the premises. She said that if he applied a decision would be made to his application as soon as possible after he had returned the form, but she could not guarantee that he would be granted a tenancy of the premises or any other property. An application for a sole tenancy was made by the defendant, but was refused by the claimant on 16th July 1999 when Mrs Vickers wrote to the defendant. She stated that the application had been refused `on the basis that, as a single person, you are not entitled to family sized occupation'. 4.On 16th November 1999 the claimant's housing manager, Mr David Hooper, wrote to the defendant. He advised the defendant that the Head of Housing for Environmental Health Services had decided he should not be granted a tenancy of the premises and possession proceedings should be commenced. Mr Hooper informed the defendant of his right to make an application for accommodation via the housing register. Mr Hooper went on in his letter to request the defendant to vacate the premises immediately and return the keys to the Housing Department. He said that he had instructed Council's legal services to obtain an order for possession."
[4]These proceedings were begun on 13th March 2000. In his defence Mr Qazi admitted that he was in occupation of the property. He stated that he resided in the property with his wife, Mrs Abida Qazi, with their five-year old son; that they were married by an Islamic ceremony in October 1999, with the legal ceremony being performed on 27th July 1999. Mr Qazi, Mrs Qazi and her five-year old son had lived in the premises together from June or July 2000. It also appeared from the evidence that Mrs Qazi was pregnant. Accordingly it is clear that Mrs Abida Qazi and her son had not moved into the property until after Mr Qazi had been given notice to quit the premises. That occurred on about 26th May 1999.[5]Mr Qazi also alleged that, in seeking a possession order, Harrow had acted in breach of Article 8 of the European Convention on Human Rights, and that since the property was no longer under occupied such interference was not justified under Article 8(2) of the Convention. He also contended that the making of a possession order would amount to a breach of Article 8. He also contended that there had been delay in processing the claim to housing benefit and that he should receive full housing benefit for the relevant period. In fact it appears that his claim for back-dated benefit has not been fully back-dated.[6]The defence which Mr Qazi filed was not filed until 7th December 2000, but it appears that Harrow learned of Mr Qazi's remarriage on 6th June 2000. Reference is made in the evidence to Harrow's housing allocation policy and to evidence that was given at the hearing before the Recorder about that policy, but the policy has played no part on this appeal. Accordingly I do not propose to refer to it.[7]The Recorder held that notice to quit by one joint tenant was sufficient in law to determine the whole of the joint tenancy. He reached that conclusion on the basis of Hammersmith v Monk [1992] 1 AC 478 . I should add that it is no part of the appellant's case to challenge that rule of law under Article 8. The Recorder further held that since 22nd March 1999 Mr Qazi had accordingly had no legal or equitable interest in the premises.[8]The Recorder went on to hold that the tenancy had terminated not by act of Harrow but by act of one of the joint tenants. Distinguishing the decision of Longmore J, as he then was, in R v Bracknell District Council (2001) 33 HLR 495, the Recorder held that Article 8(1) of the European Convention on Human Rights was not engaged. He held that the premises did not constitute Mr Qazi's home within the meaning of Article 8(1) because he had no legal or equitable interest or right in the premises and did not have any such interest at the time the possession proceedings were commenced. In addition, he rejected the argument that the possession proceedings amounted to interference with the defendant's right to a family life, that is his family life with his new wife and her son. He accepted the argument of counsel for Harrow that interference with private life, as referred to in Article 8(1), involved interference with personal liberty or privacy, neither of which was applicable in his case. In the light of these conclusions, the Recorder did not consider the arguments based on Article 8(2).[9]On that appeal Mr Luba QC appears for the appellant. He has made a number of submissions. He submits that in order to meet the case of the respondent on this appeal, he has, in effect, to prove a negative - that is the converse of the proposition put forward by the respondent that the starting point for determining whether a person has a home for the purposes of Article 8 is whether that person has a legal right to be there or a legal interest in the property or the land on which it stands.[10]To prove the negative Mr Luba has taken us to all the reported or published authorities in the European Court of Human Rights and the European Commission on Human Rights which he considers relevant. I will now turn to these cases. We were taken to them in chronological order.[11]First in point of time is Cyprus v Turkey , a decision of the European Commission [1976] 4 EHRR 482. But I need not mention that case further because it is common ground that it is of limited assistance.[12]The next case is Wiggins v United Kingdom (1978) 13 DR 40. In that case the applicant owned a house in Guernsey, but ceased, under Guernsey law, to be entitled to occupy it after his wife left him. The European Commission considered that the property remained his home. I do not think I need go further into that case.[13]The next case chronologically is S v United Kingdom (1986) 47 DR 274. In this case the applicant was a lesbian who had lived with her partner in premises of which her partner was the tenant. After three years or so the partner died and the applicant had no right by law to apply for a continuation of the tenancy in her own name. In paragraph 4 of the decision the Commission said this:
"4.The applicant alleges that she has been evicted from her home for no other reason than that she was of the wrong sex to have a claim under domestic law to succeed to the tenancy of her home. The Commission notes that the applicant was occupying the house, of which her partner had been the tenant, without any legal title whatsoever. Contractual relations were established between the local authority and the deceased partner and that contractual agreement may or may not have permitted long-term visitors. The fact remains, however, that on the death of the partner, under the ordinary law, the applicant was no longer entitled to remain in the house, and the local authority was entitled to possession so that the house could no longer be regarded as `home' for the applicant within the meaning of Article 8. Further, even if the applicant's right to respect for her home, as guaranteed by Article 8, could be regarded as having been interfered with by the order of the County Court for possession against her, the Commission considers that such interference was clearly in accordance with the law and was also necessary for the protection of the contractual rights of the landlord to have the property back at the end of the tenancy."
[14]On the basis of that reasoning, the Commission declared the complaint under Article 8 to be inadmissible. It is to be noted that the Commission clearly says that the house could not be regarded as the applicant's home within the meaning of Article 8 once she ceased to be entitled to remain in the house. That affords support for the respondent's argument on this appeal. However, attention was also drawn to the fact that the Commission went on to deal with the applicant's complaint under Article 14 on the basis that she had a right to respect for her home and, at that point, the Commission must have considered that the applicant had a home.[15]The next case chronologically is Gillow v United Kingdom (1986) 11 EHRR 335. This was a decision of the European Court of Human Rights. It was a case again from Guernsey. The Government, however, accepted that the applicant had a home at the property in Guernsey, which was called Whiteknights. Even so, the court makes it clear at paragraph 46 that the question of whether or not the property was a home within the meaning of the Convention was a question of fact. The court noted that the applicants had moved there in 1956, and added this:
"Furthermore, the Court is satisfied that they had not established any other home elsewhere in the United Kingdom. Although the applicants had been absent from Guernsey for almost nineteen years, they had in the circumstances retained sufficient continuing links with Whiteknights for it to be considered their home, for the purposes of Article 8 of the Convention, at the time of the disputed measures."
[16]The next case is Mabey v United Kingdom (1996) 22 EHRR CD 123, a further decision of the Commission. The issue in this case was whether or not the enforcement of a planning enforcement notice constituted a breach of the applicant's rights under Article 8. The applicant had in fact been living on the premises for some 20 years. He was said to come of Romany stock and to have acquired the property in order to live there in a caravan for which, ultimately, he was refused permission. What is important in this case is the test which the Commission applied in determining whether or not Article 8 was engaged. The following paragraph is crucial:
"The Commission recalls that whether or not a particular habitation constitutes a `home' for the purposes of Article 8(1) will depend on the factual circumstances of the particular case, namely, the existence of sufficient and continuous links. It is not limited necessarily to those homes which have been lawfully occupied or lawfully established (see Nos 20348/92, Buckley v United Kingdom, Comm.Rep 11.1.95 pending before the Court, and No. 7456/76, dic. 8.2.78, DR 13 p40, [Wiggins V United Kingdom] and Gillow judgement (1989) 11 EHRR 3357.) While the applicant in this case did not establish his home in a caravan on his land with the necessary planning permission, the Commission has had regard to the length of his occupation there, namely, over 20 years. In the Commission's view, this is sufficient to bring his complaints within the scope of the first paragraph of Article 8 of the Convention."
[17]I draw attention to the fact that the Commission applied a factual test, namely whether there was sufficient and continuous links, and also held that the question of whether a home existed was not limited to those homes which have been lawfully occupied or lawfully established.[18]The next case is Buckley and the United Kingdom (1996) 23 EHRR 101 . This again was the case of a gypsy who owned land but lived there without planning permission. The case is reported both before the Commission and before the European Court of Human Rights. The Commission, at paragraph 63 at page 115, said this:
"The Commission recalls that the applicant did not have permission to station her caravans on the land which she purchased in or about the end of 1988. Her occupation has therefore never been lawful. The Commission considers however that the concept of `home' within the meaning of Article 8 is not limited to those which are lawfully occupied or which have been lawfully established. `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."
Then there is a foot-note reference to Wiggins and Gillow but not to S . "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."[19]As I said, the matter also went before the European Court of Human Rights. At paragraph 52 of its judgment it noted that the Government's contention in that case was that only a home legally established could attract the protection of Article 8. The court then referred to its decision in Gillow v United Kingdom and said this:
"Although in the Gillow case the applicants' home had been initially established legally, similar considerations apply in the present case. The Court is satisfied that the applicant bought the land to establish her residence there. She has lived there almost continuously since 1988 - save for an absence of two weeks, for family reasons, in 1993 - and it has not been suggested that she has established, or intends to establish, another residence elsewhere. The case therefore concerns the applicant's right to respect for her `home'."
[20]So, clearly, while the court refers to the fact that the applicant had bought the land in order to establish her residence, the important factor was that she had lived there almost continuously since 1988 and that it had been her home.[21]The next case is Ure v United Kingdom Application No. 28027/95, a case which came before the Commission. This case is important because it concerns a situation where there were originally two joint tenants, a man and his wife, and one of them (as here) served notice to quit thus terminating the tenancy of the other joint tenant. So the case is close on its facts. In its decision, the Commission said this:
"Furthermore, it does not appear that the manner in which the authorities balanced the various interests involved, such as the interest of the leaving co-tenant, of those in need of accommodation, and of the applicant, was arbitrary or unreasonable. Thus, the applicant's housing need apparently changed as he was not living with his wife and child any more. Moreover, replacement housing accommodation had been obtained for the applicant. Therefore, the Commission finds that the alleged interference with the applicant's rights under Article 8 of the Convention was justified under the second paragraph of this provision."
[22]On that basis the Commission declared that the complaint was inadmissible; and, of course, it is apparent that the Commission was addressing itself to the further question that would arise if the appellant in this case has a home, namely whether or not the possession order was rightly made or violated his right under Article 8(2). In that case the Commission was satisfied that the right was not violated and took into account the fact that the housing needs of the applicant had changed, and so on. But the important point for present purposes is what the Commission says about Article 8(1). As I read the decision, however, the Commission does decide whether there is a right under Article 8(1) because it is sufficiently satisfied about the position under Article 8(2) and that is sufficient to enable the Commission to declare the complaint inadmissible.[23]The next authority chronologically is Mentes v Turkey (1997) 26 EHRR 595. In this case the applicant occupied premises which belonged to her father-in-law. The European Court of Human rights concluded that that was sufficient to engage Article 8. The court said this: "Given her strong family connection and the nature of her residence, her occupation of the house on 25 June 1993 falls within the scope of the protection provided by Article 8 of the Convention." (paragraph 73)[24]However, the case was a very different case on its facts, and I do not think that I need go further into it.[25]The next case was Khatun v United Kingdom (1998) 26 EHRR CD 212, a decision of the European Commission on Human Rights arising out of the decision in this jurisdiction in Hunter v Canary Wharf [1997] AC 655 . The position in this case is that the applicants included not only the owners of property but also people who resided in the property, including children. The Commission said this:
"The Commission notes that in the domestic proceedings, a distinction was made between those applicants with a proprietary interest in the land and those without such an interest. For the purposes of Article 8 of the Convention, there is no such distinction. `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) of the Convention will depend on the factual circumstances, namely the existence of sufficient and continuous links (see Gillow v United Kingdom (1989) 11 EHRR 335 ). Even where occupation of the property is illegal, this will not necessarily prevent that occupation from being that person's `home' within the meaning of Article 8 of the Convention (see Buckley v. United Kingdom (1997) 23 EHRR 101 ). The Commission considers that Article 8(1) applies to all the applicants in the present case whether they are owners of the property or merely occupiers living on the property, for example the children of the owner of the property."
[26]So that was a clear decision of the Commission in July 1988 that a proprietary interest in land was not necessary for the purposes of a home for the purposes of Article 8.[27]There were then two more decisions concerning the United Kingdom. Chapman v United Kingdom (2001) 33 EHRR 399 . This also was a case of a gypsy who occupied property (her own land) without planning permission. I need not go into the facts. At paragraph 72 the Court notes that the Government accepted that the applicant's complaints concerned her right to respect for home, and then the Court said this:
"The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the applicant's stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition. The Court finds therefore that the applicant's right to respect for her private life, family life and home are in issue in the present case."
Then at paragraph 102:
"Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community."
[28]Lastly, O'Rourke v United Kingdom Application No. 39022/97, a decision of the Third Section of the European Court of Human Rights (as reconstituted after the coming into force after the 11th Protocol). The question here was whether or not a person who was otherwise homeless and who had been given temporary accommodation in a hotel but had been evicted as a result of his behaviour, could bring a complaint under Article 8. The Court recalled the decision in Chapman that Article 8 did not in terms give a right to be provided with a home, and went on to say this:
"The Court recalls further that an individual must show sufficient and continuing links with a place in order that he can establish that it is his `home' for the purposes of Article 8 (see Gillow v United Kingdom, judgement of 24 November 1996, series A no. 109546)."
[29]The Court went on to consider the application of that test to the facts and also to consider whether in fact Article 8(2) was violated. In the light of the facts, the Court concluded that the complaint was manifestly ill-founded and declared that it was inadmissible.[30]Mr Luba also took us to a number of text books. I will not go through them all. The most detailed treatment of "home" for the purposes of Article 8 from the viewpoint of our domestic law is in Property Law and Human Rights by Deborah Rook. In a long passage dealing with the recent authorities, she seems to accept that a squatter may be able to establish the applicability of Article 8, though I should say that nothing in this judgment should be taken as dealing with the case of a squatter since we are not concerned with a squatter.[31]Reference was also made to Harris O'Boyle and Warbrick's Law of the European Convention on Human Rights (1995), where the authors say this: "There is no right to a home, not even a family home, but the notion of `home' is not seen entirely as the protection of a particular category of established property rights. It includes a family home but it is not restricted to it. While its core idea is one of sanctuary against intrusion by public authorities, there are further connotations to the idea of `home', in particular that the state will facilitate the right to live in one's home rather than merely protect it as a possession or property right." (page 319)[32]This passage was referred to by Lord Cooke in Hunter v Canary Wharf , above. At page 714, Lord Cooke said that Article 12 of the Universal Declaration of Human Rights and Article 8 of the Convention were aimed in part at protecting the home and were to be construed as giving protection against nuisances. He then added:
"The protection is regarded as going beyond possession or property rights: see Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights (1995) p.319."
[33]Mr Luba made a number of submissions based on these authorities. He submits that the word "home" has an autonomous meaning under the Convention, and for that proposition relies on the passage from Buckley v United Kingdom which I have already read. Mr Luba also submits that a "home" is a place of actual residence or accommodation and that the test is to be found in such cases as Buckley . Mr Luba submits that the occupier need not enjoy a legal title to the property or a legal interest in the property in order to assert that it is his home. For this proposition he relies on Gillow v United Kingdom , where one of the applicants was the husband of the owner. He also relies on Mentes v Turkey , to which I have already referred, and Khatun v United Kingdom , where some of the applicants, as I have mentioned, were children of the owners.[34]Mr Luba submits that a home does not cease to be such once it has become unlawful to reside in it, and that a home can be such even though it has been established or unlawfully occupied. In this connection he relies on Mabey v United Kingdom , where the applicant had lived in a caravan without planning permission for about 20 years. Mr Luba submits the unlawfulness of the occupation of the home will become relevant when Article 8(2) falls to be applied and in that connection refers to the passages in Buckley and Chapman to which I have already referred.[35]Mr Luba submits that the word "home" is sufficient to cover the matrimonial home occupied on a joint secure tenancy even after the tenancy has ended. For this proposition he relies on Ure v United Kingdom , above.[36]Mr Luba further submits that there is no direct authority in this jurisdiction in relation to a former tenant. There are a number of cases which have come before the courts of this country McLellan v Bracknell Forest District Council [2001] EWCA 1510, Lambeth Borough Council v Howard (2001) 33 HR 58, Castle Vale HAT v Gallagher (2001) 33 HLR, Poplar HARCA v Donoghue [2001] 3 WLR 183 and St Brice v London Borough of Southwark [2001] EWCA 1138. Those were cases where secure tenants or tenants under introductory tenancies who relied on Article 8. But in those cases their tenancies did not terminate by operation of law, as in this case. Rather, in those cases, an order of the court was needed to bring the tenancy to an end.[37]Mr Luba submits that the prospective or actual displacement of an individual from his home engages Article 8(1) whether that displacement arises from forcible expulsion or refusal to permit entry, as in Cyprus v Turkey , above, or as a result of an injunction to vacate as in Mabey . Mr Luba also submits that Article 8(1) is engaged by a claim for possession in possession proceedings, and in this connection relies on McLellan v Bracknell and Poplar v Donoghue .[38]Mr Luba summarised his submissions thus: (1)The question whether a person has a home is a question of fact. (2)If Article 8(1) were conditional on property rights, it would be difficult to see when Article 1 of the First Protocol would apply. (3)Even in the domestic situation, a home does not mean that the applicant must have a legal or equitable interest in property. In this type of case there can be a home even though the tenancy has become forfeit, expires or is vested in a trustee in bankruptcy, or there has been notice to quit and there is no security of tenure. Even in those situations, submits Mr Luba, where a person has had a tenancy which has come to an end, there can be a home.[39]I now turn to the respondent's submissions.[40]Mr David Matthias, for Harrow, contends that the premises cannot constitute a person's home within Article 8(1) unless that person, or a member of that person's family with whom that person resides, has some legal or equitable or contractual interest in those premises. He refined the submission thus. The applicant must have a legitimate interest, whether that interest is proprietary, or contractual or consensual, and there must also be actual residence. As to a consensual interest, Mr Matthias means that the residence is with the consent of the householder who has some rights in the property. On Mr Matthias's submission, neither ownership nor residence alone is enough: both residence and ownership must be present and must be satisfied.[41]In support of the submission Mr Matthias relies on Wiggins v United Kingdom , S v United Kingdom , Gillow v United Kingdom , and Buckley v United Kingdom , and Chapman v United Kingdom . He submits that his submission is supported by S v United Kingdom in which, as I have explained, the Commission referred specifically to the fact that the applicant would no longer have a home after the death of her partner, because at that stage her right to be present in the property had come to an end.[42]Mr Matthias also refers to Keir Starmer's "European Human Rights Law", which was before the Recorder. At paragraph 22.6 Mr Starmer states:
"The word `home' in article 8(1) includes any premises or shelter used by an individual as his/her home and in which s/he has a legal interest. It can also extend to premises or shelter which an individual is occupying unlawfully, so long as s/he has a legal interest in the premises or shelter, or in the land on which they stand. So, for example, in Wiggins v UK , where the applicant owned a house but had no legal permission to occupy it, the European Commission held that it qualified as `home within the meaning of Article 8(1)'."
[43]Then Mr Starmer goes through the various cases. Indeed, Mr Matthias has also taken us through the cases cited above in support of his submission that they really turn on the fact that the applicant had had some right to be on the premises before the alleged violation of Article 8(2) took place.[44]I now turn to my conclusions. The starting point is the Human Rights Act 1998. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It is common ground that a public authority would include Harrow or, indeed, the court itself. Section 7(1)(b) of the 1998 Act provides that a person who claims that a public authority has acted in a way which is unlawful by section 6(1) may rely on Convention rights in any proceedings.[45]The Human Rights Act 1998 was implemented on 2nd October 2000, that is, before the matter came before the Recorder. Article 8 of the European Convention states:
"1Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right 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 preservation of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[46]Section 2(1) of the 1998 Act provides that:
"A court determining a question which has arisen in connection with a Convention right must take into account- (a) the judgment, decision, declaration or advisory opinion of the European Court of Human rights; (b) the opinion of the Commission given in the report under Article 31 of the Convention..." (c) the decision of the Commission in connection with Article 26 or 27(2) of the Convention."
[47]The point to be decided in this case is a question of law and it is: 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. It is common ground that this question is not covered by earlier authority in this jurisdiction. We have not been concerned with the facts of this case because the issue has been presented to the court as one of law. Mr Luba put the matter on the basis that he was having, effectively, to prove a negative, and he gave us an exhaustive study of the development of the jurisprudence of the European Commission on Human Rights and of the European Court of Human Rights. As I see it, this jurisprudence is now inexorably moving in one direction. It is not surprising to find that earlier cases do not contain the fully developed case law that appears later in the jurisprudence, because, as is well-known, the jurisprudence of the Strasbourg organs is evolutive, that is it develops in accordance with the demands of changing social conditions.[48]As I see it, the present state of the law so far as concerns this case may be found in Buckley v United Kingdom . In that case the Commission, as I have already pointed out, at paragraph 63 stated that "... the concept of `home' within the meaning of Article 8 is not limited to those which are lawfully occupied or which have been lawfully established. `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 `in accordance with the law' and for the balancing exercise undertaken between the interests of the community and those of the individual, in assessing the necessity of any interference."[49]The Court's decision was to much the same effect.[50]I appreciate that in Buckley , as Mr Matthias points out, the applicant was the legal owner of land. But the reasoning of the Strasbourg organs does not, in my judgment, turn on that point. Mr Matthias has sought to distinguish the other cases before us on this ground and has taken us through those cases with great thoroughness. But the same conclusions, as I see it, with one possible exception, apply also to those cases.[51]I also bear in mind that Buckley was a decision of the European Court of Human Rights as constituted before the 11th Protocol came into effect. But we have also the decision of the Third Section of the new Court in O'Rourke v United Kingdom , to which I have already referred, and which, in my judgment, clearly applies the same test, namely the question of whether the applicant had shown sufficient and continuing links with the place of habitation in question in that case. Indeed, the European Court of Human Rights in that case expressly referred back to Gillow v United Kingdom which was the basis of its decision in Buckley . Moreover, the Buckley decision was referred to in Chapman , which was a decision of the Grand Chamber, although it is correct to point out that the application of Article 8 was conceded in that case.[52]Mr Matthias in his careful submissions has relied on another point that appears from Chapman , based on paragraph 99 of that decision. The court said:
"It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which she or he can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision."
[53]Mr Matthias warned against reaching a conclusion that the appellant had a right under Article 8 in the present case, on the basis that it would amount to a right to be provided with a home. But, as I see it, what the court said in Chapman is not applicable here where ex hypothesi the applicant had a home in this case before the tenancy terminated and the question is whether he can continue to assert that he had a home notwithstanding the termination of the tenancy by act of a joint tenant. It is not the same thing as having no home to begin with and seeking to be provided with a home under Article 8.[54]The possibly divergent authority, it seems to me, is S v United Kingdom , to which I have referred above. It seems to me that this case really marked the high water mark of Mr Matthias's submissions. The Commission certainly seems to have thought that the applicant lost her right to a home once her right, or rather that of her partner, had terminated. It is, however, possible that the Commission did not reach such a firm view, since they went on to consider the question whether or not there was a violation of Article 8 taken in conjunction with Article 8, though again it may be that the Commission were considering the question of a right to a home for that purpose at a different point in time, namely before the termination of the tenancy.[55]Be all that as it may, the position is that the Strasbourg jurisprudence has moved on, and that is to be expected in the light of the evolutive approach which the Strasbourg organs adopt. In my judgment, S v United Kingdom no longer offers guidance to this court which it should take into account in determining the question raised by this application and appeal.[56]The result, as I see it, is that Buckley should be taken to represent the Strasbourg jurisprudence and to represent the test applicable to determine whether or not the applicant has a home under Article 8(1). This conclusion does not in my judgment amount to cutting new legal ground. "Home" is a term of the Convention, and it is not appropriate, as I see it, to introduce into the meaning of such a Convention term domestic law concepts of licence or trespass, or landlord and tenant. As Mr Luba submits, the Strasbourg jurisprudence establishes that "home" is an autonomous concept for the purposes of the Convention law.[57]Furthermore, while there is no previous authority of this court which exactly decides the point, the general tenor of those earlier decisions in this jurisdiction, which I have already listed above, is, as it seems to me, consistent with the appellant's submissions since they proceed on the basis that Article 8 is engaged by the making of an order for possession. Moreover, as Mantell LJ observed in the course of argument, the meaning given by the Strasbourg organs to the term "home" in Article 8 accords with its ordinary meaning in the English language. Thus, for the purposes of Article 8, to which this court must give protection by virtue of its obligations under the Human Rights Act, in my judgment the term "home" is to be given the same meaning where a tenancy has terminated by operation of law as in Convention jurisprudence; and I take the Convention jurisprudence to be encapsulated in the passage which I have already referred from Buckley . As I have said, that passage was based on Gillow V United Kingdom , and the same approach has been taken and adopted by the new Court even after the coming into force of the 11th Protocol. In those circumstances I would hold that the applicant did have a right to a home for the purposes of Article 8 when the possession proceedings were served on him.[58]Accordingly I would grant permission to appeal, allow the appeal and remit the case to the County Court to determine whether interference with Mr Qazi's right to a home is permitted by Article 8(2) of the Convention.

LORD JUSTICE MANTELL: I agree.

LORD JUSTICE PETER GIBSON: I also agree. But as the point in issue is one of some general importance, I add a few words of my own.

[61]By Article 8(1) of the European Convention on Human Rights everyone has the right to respect for his private and family life, his home and his correspondence. The question for this court is the meaning to be given to the term "his home".[62]Mr Matthias submits that for a habitation to be regarded as a home two conditions must be satisfied:(1) that the applicant must have a legitimate interest in the home, whether proprietorial, contractual or consensual (in the sense of the applicant being in the premises with the consent of the householder who in turn has rights in the premises);(2) the applicant must be in actual residence.[63]I do not doubt that the second condition is inherent in the concept of "his home", (though the residence of an application not in occupation to which he intends to return may yet be regarded as "his home"). But when Mr Matthias was asked from what the first condition was derived, he indicated that it came from S v United Kingdom (1986) 47 DR 274, the Commission's decision to which my Lady has referred. I accept that, had the Convention jurisprudence stopped there, Mr Matthias would have had some support for his argument. But that decision is only by the Commission, and since then the European Court of Human rights has laid down the appropriate test. It did so in Gillow v United Kingdom (1986) 11 EHRR 335 by reference to the unusual circumstances of that case, saying at page 349 of the report:
"Although the applicants had been absent from Guernsey for almost nineteen years, they had in the circumstances retained sufficient continuing links with Whiteknights for it to be considered their home, for the purposes of Article 8 of the Convention, at the time of the disputed measures."
[64]The test of sufficient continuing links with the property in question is one that has since then been repeated by the court consistently: see in particular the latest case of O'Rourke at page 7 which my Lady has cited. Similarly, the Commission has since the Gillow case also stated the test in similar terms, as my Lady has demonstrated.[65]For my part I can see no sufficient justification for importing into the concept of "home" Mr Matthias's first condition. True it is that in the cases where Article 8(1) has been held to have been engaged the applicant has been a person with such an interest, and in S v United Kingdom the unsuccessful applicant was a person who lacked such an interest. But the suggested condition forms no part of the test laid down by the European Court of Human Rights, and I cannot see why the condition should be implied into that test. Whilst I do not doubt that the court, in looking at all the facts ,as it is required to do, to see if there are sufficient and continuing links with the property in question, can and will take into account matters such as whether the applicant has a legal or beneficial interest or a licence in the property, I cannot accept that this forms a necessary condition for the satisfaction of the test of property being the applicant's "home" for the purposes of Article 8(1).[66]Mr Matthias submitted that unless his test was accepted, trespassers would be able to enjoy the protection of Article 8, and that, he suggested, could not have been intended. Thus he accepted that even if a trespasser had occupied a property as his sole residence for 11 years and 11 months, he could not complain under Article 8(1) if his occupation was interfered with as that residence could not be his home for the purposes of Article 8. I do not accept that Article 8 excludes the possibility of trespassers having a home and having rights which are protected thereunder. Much of Mr Matthias's objections seem to me to be a protest at the fact that the Convention now confers new enforceable rights on persons in the United Kingdom. That is the consequence of the Human Rights Act 1998.[67]For these as well as the reasons given by my Lady, I too would give permission to appeal, allow the appeal and remit the case back to the county court to determine the outstanding question on Article 8(2).

Order

Appeal allowed. We will order that the costs of the application and of the appeal, as well as the costs in the court below, should be paid by the Council to the successful applicant. We will stay that order for costs until the outcome of the remitted hearing. Legal aid assessment of applicant's costs. Application for leave to appeal refused. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)

Cited in 6 later judgments