By Juan Carlos Benito Sánchez, PhD Researcher (FRESH) at F.R.S.-FNRS and UCLouvain (Belgium)
In its decision in F.J.M. v. the United Kingdom, delivered on 29 November 2018, the European Court of Human Rights (First Section) declared inadmissible a complaint of a violation of Articles 6 and 8 of the Convention. The applicant had been evicted following a possession order made by a court, but was not allowed to raise a defence on proportionality grounds. She claimed that the possession order was disproportionate in her case and that she should have been able to require the court to make a proportionality assessment before granting possession and evicting her. This case concerns no-fault evictions in the UK, also known as “Article 21 evictions.” Section 21 of the Housing Act 1988 allows landlords to evict tenants who are not at fault without the need to provide any reasons, as long as they notify the tenant in writing at least two months in advance.
F.J.M. v. the United Kingdom is the latest episode in a series of exchanges between the European Court of Human Rights and the UK Supreme Court concerning the compatibility of possession orders with Article 8 of the Convention. Initially, the House of Lords had taken the view that a proportionality defence could not be mounted against possession orders in the case of public housing tenants—where the landlord is a public authority—, since Parliament had already passed legislation striking a balance between the rights and interests of tenants, on the one hand, and public authorities, on the other hand. In McCann, the European Court of Human Rights held that the existence of legislation should not prevent a tenant from raising a proportionality defence when possession of their home was being sought. The Supreme Court subsequently accepted this. However, importantly, all these cases referred to public housing. Both courts stated that their reasoning was not meant to apply to the private rented sector—where the landlord is a private individual or a company.
The applicant, F.J.M., lived in a house in Abingdon (UK). She paid rent to her parents, who had purchased the property in 2005 with the help of an eight-year mortgage loan and had granted her an assured shorthold tenancy. The applicant’s parents fell into arrears, and in 2012 the mortgagee (a financial entity) sought a possession order to bring the tenancy to an end, evict the applicant, and recover possession of the house.
F.J.M. suffered from mental health problems. According to her psychiatrist, she would have real difficulty finding alternative accommodation if evicted due to her mental health history, and there was a significant possibility that she would become homeless. Even if alternative accommodation was found, the stress and upheaval caused by the eviction could lead to self-harm, suicide, or violence towards others. The applicant had previously lost two public sector tenancies on account of her behaviour due to her mental health.
The UK Supreme Court ruled in this case (McDonald v McDonald) that the lack of statutory protection for tenants served to reinvigorate the private residential rented sector, “without conferring so much protection as to deter private individuals and companies from making residential properties available for letting” (§ 45). Since the legislation had already struck a balance between the rights and interests of tenants and private landlords, it was not justified that tenants should be entitled, as a matter of principle, to require the court to consider the proportionality of the possession order.
F.J.M. then lodged an application before the European Court of Human Rights, claiming a violation of Articles 6 and 8 of the Convention. She argued that the possession order was disproportionate in her case according to the concurring circumstances, and that the fact that she was not able to have the proportionality of the order examined by the court impinged on her Convention rights.
The European Court of Human Rights recalled its case law to the effect that the loss of one’s home is the most extreme form of interference with the right to respect for the home. Accordingly, “any 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 of the Convention” (§ 36).
The Court also recalled that it had previously applied this principle in cases where applicants lived in state-owned or socially owned accommodation, or, in the one case where it had been applied to private rented accommodation, it had been under the specific circumstances of the former Yugoslavia (Brežec). In the case of Vrzić, the Court had already underlined that an important aspect of this principle was that no other private interests be at stake. However, in the private rented sector, a measure prescribed by law with the purpose of protecting the rights of others may be seen as necessary in a democratic society. It thus held that the balance between the rights and interests of tenants and private landlords could indeed be struck by legislation.
The Court considered that the two parties had entered voluntarily into a contractual relationship in respect of which the legislature had already regulated the balance between the Article 8 rights of residential tenants and the Article 1 of Protocol No. 1 rights of private sector landlords, having regard to the general public interest in reinvigorating the private rented sector. Consequently, it declared the application inadmissible. The complaint under Article 6 did not raise any separate issues.
This decision leaves private rented sector tenants in the UK substantially less protected than public housing tenants with regard to possession orders. Whereas tenants in public housing can raise a proportionality defence under Article 8, tenants in private rental housing can be evicted with no fault and no reasons given, without the possibility to require the court to make a proportionality assessment.
Whereas the Court had considered for tenants in public housing that the right to raise a proportionality defence fell within the procedural safeguards required by Article 8, and that this would not have serious consequences for the functioning of the system of land law in the UK, its analysis regarding private sector tenants followed a different path. The Court observed that other private interests were here at stake. Consequently, since the two parties had voluntarily entered into a contractual agreement “whereby they risked losing their home,” in respect of which the legislature had prescribed how their respective Convention rights were to be respected, Article 8 did not require the possibility to raise a separate proportionality defence.
The Court deemed that “if, once [the tenancy] comes to an end, [the tenant] could require a court to conduct a proportionality assessment before making a possession order, the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging” (§ 43). This stands at odds with the Court’s position as regards public housing, where it acknowledged that a summary judgment could be delivered in the majority of cases and that the situations where a proportionality assessment would have to be carried out would be exceptional. It is difficult to see the unpredictability and potential damage of extending this to the private rented sector in similar terms: in most cases, the court could summarily make the possession order, while leaving a margin for those hard cases where a thorough proportionality assessment has to be carried out.
Paradoxically, the eviction of F.J.M. represents a good example showing the need for private rented sector tenants to be able to raise proportionality defences, from a right to housing perspective. The applicant was a vulnerable individual, suffering from mental health problems. An expert report had confirmed the extreme difficulty of finding alternative accommodation due to her mental health issues, underlining that the eviction would cause her suffering, with the risk of self-harm, violence to others, or suicide.
The fact that the UK legislature could pre-emptively determine the balance between her Article 8 rights and the mortgagee’s Article 1 of Protocol No. 1 rights, without the possibility for courts to examine the particular case, potentially stands at odds with the understanding of the right to housing enshrined in international human rights law, where it is generally considered that persons at risk of eviction must be able to have the proportionality of the eviction examined by a court before it takes place, considering the particular circumstances of each case (see, notably, the Views adopted by the Committee on Economic, Social and Cultural Rights in the case of Ben Djazia et al., concerning an eviction without appropriate alternative accommodation in Spain).
Despite the fact that the right to housing is not recognised as such under the Convention, its protection through the right to private and family life and the right to home remains crucial. In my view, the Strasbourg Court should interpret Article 8 in line with the standards developed in international human rights law (but also by the European Committee of Social Rights) in order not to weaken the practical realisation of this right across Europe. In the particular case of F.J.M., some questions could also be raised as to the disproportionate impact of this rule on persons with disabilities, which could have potentially opened up an examination in terms of Article 14 read in conjunction with Article 8.
To sum up, F.J.M. v. the United Kingdom seems to steer away from previous decisions which had given a strong protection to the right to housing through Article 8 of the Convention, such as Connors, McCann, Yordanova, or Winterstein. It does so by effectively reinforcing the distinction between two types of tenants—those in public housing and those renting in the private sector. From a practical point of view, this sends a worrisome message in times of housing commodification, where public housing systems in Europe are progressively dismantled to the benefit of increasingly deregulated private housing arrangements.