European Court rules on the importance of proportionality and personal circumstances in eviction cases

Buckland v United Kingdom [2012] ECHR 1710 (18 September 2012)

The European Court of Human Rights has held that a UK Court of Appeal decision to uphold a possession order against an applicant constituted an unjustified breach of the applicant’s right to respect for her home in violation of article 8 of the European Convention on Human Rights which concerns the right to respect for private and family life. The European Court awarded damages and costs to the applicant, ordering the UK Government to reimburse the applicant if a costs order made against her in the UK Court of Appeal is enforced.
Facts

The applicant, a gypsy, entered into a licence agreement in 2004 with the Gypsy Council to occupy a plot on a caravan site. Following allegations of nuisance and anti-social behaviour, the Council issued possession proceedings against the applicant and her family.

Under the Mobile Homes Act 1983, UK Courts could consider the reasonableness of the termination of residency licences for mobile homes on “protected sites”. The definition of “protected site” in the Mobile Homes Act excluded sites providing accommodation for gypsies. An amendment to the Mobile Homes Act in 2008 removed this exclusion but, at the time the applicant's case was decided, the amendment had not yet come into effect in Wales. The County Court, therefore, could not consider the reasonableness of the termination of the applicant's licence.

The County Court was, however, empowered to suspend the possession order for up to 12 months at a time under 2005 amendments to the Caravan Sites Act 1968. In exercising this power, the County Court was required to have regard to “all the circumstances.”

In July 2006, the County Court made an order for possession against the applicant, as it considered itself bound to do under the Mobile Homes Act. After considering the applicant's circumstances, the County Court suspended the possession order until 24 November 2006 under the Caravan Sites Act.

The applicant appealed to the Court of Appeal. Her appeal was dismissed; the Court holding that, although the Court was bound to make an order for possession, the Court's power to suspend the possession order for 12 months was a sufficient procedural safeguard of the applicant's article 8 rights. In February 2008 the House of Lords refused the applicant’s request for permission to appeal. The applicant applied to the European Court following this decision.

Decision

Article 8 provides that everyone has the right to respect for their family life and home, and that a public authority shall not interfere with the exercise of this right “except such as in accordance with the law and is necessary in a democratic society.”

The principal issues before the Court were:

• whether the legislation under which the possession orders were made against the applicant is incompatible with article 8; and
• whether the relevant legislation is incompatible with article 8 in conjunction with article 14.

In considering the first issue, the Court considered whether the interference was “necessary in a democratic society” in pursuit of a legitimate aim under article 8. The Court held that the interference will be considered “necessary in a democratic society” if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued.

While the question of necessity initially is a matter for the national authorities to decide, the final evaluation involves the Court reviewing “whether the reasons cited for the interference are relevant and sufficient.”

The Court emphasised that, as the loss of one’s home is the most extreme form of interference with the right to respect for the home, “[a]ny person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 … notwithstanding that, under domestic law, his right to occupation has come to an end.”

The Court observed that, although the applicant was able to argue for a suspension of the possession order and have her personal circumstances taken into account, she was not able to argue that the possession order itself should not have been made. The Court further held that:

The possibility of suspension for up to twelve months of the possession order is inadequate, by itself, to provide the necessary procedural guarantees under Article 8. Although further suspensions may be granted, suspension merely delays, and does not remove, the threat of eviction.

The Court concluded that there had been a violation of article 8 of the Convention because the applicant was dispossessed of her home without any possibility of having the proportionality of her eviction determined by an independent tribunal.

The Court noted that the amendment to the Mobile Homes Act which allows a Court to assess the reasonableness of the termination of the licence would provide the necessary procedural guarantees required by article 8 once it came into effect in Wales.

As to the second issue, the Court held that no separate issue arises under article 14 of the Convention and therefore found it unnecessary to examine this complaint separately.

Commentary

Article 8 of the European convention is mirrored in section 13(a) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which provides that “[a] person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.” On its face, section 13(a) of the Victorian Charter does not reflect the words of article 8(2) of the European Convention (which protects against interference from a public authority) however, the words “unlawfully” and “arbitrarily” in section 13(a) may be read as having a broader reach than the more specific language used in article 8(2). If this view is accepted, section 13(a) may constrain the actions of public authorities in a manner beyond the scope of article 8(2).

This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113129

Mizu Ardra is a Law graduate at Allens.