Since 2015, 38 local authorities in England have obtained wide injunctions against Gypsies and Travellers effectively banning them from large swathes of land in the local authority area. We believe that most of the land identified would be the only land that Gypsies and Travellers would be likely to be able to stop on if they were resorting to the area or passing through the area. Obviously this is in the context where there remains a totally inadequate supply of stopping places for Gypsies and Travellers who are exercising their nomadic way of life whether that be permanent pitches, temporary pitches or the use of land subject to ‘negotiated stopping agreements’. For many, many years Gypsy and Traveller organisations have argued that the answer to unauthorised encampments is the provision of sites and stopping places. If every local authority in England obtained such a wide injunction, where would Gypsies and Travellers go to?
FJM – v – The United Kingdom, European Court of Human Rights, application number 76202/16 – 6th November 2018
The applicant is a vulnerable adult with psychiatric and behavioural problems. She had lost two public sector tenancies on account of her behaviour. In May 2005 the applicant’s parents purchased a property with the assistance of a mortgage. They then granted the applicant an assured shorthold tenancy of the property and she claimed housing benefit to pay the rent. The parents fell into arrears with the mortgage repayments and, in August 2008, the finance company exercised its powers under the mortgage to appoint receivers. The mortgage arrears persisted and, in January 2012, the receivers served notice on the applicant under Section 21 of the Housing Act 1988 which permitted the Court to make an order for possession of a property let under an assured shorthold tenancy if it was satisfied that the landlord had given the tenant at least 2 months’ notice in writing that possession was required. The applicant sought to resist the possession order on the basis of violation of her rights under Article 8 of the European Convention (the right to respect for private, family life and home). The Supreme Court had previously rejected the possibility of such a defence. The ECtHR also rejected this possibility. The ECtHR concluded:-
McDonald – v – McDonald  UKSC 28
Article 8 of the European Convention on Human Rights is the right to respect for private and family life and home.
Winterstein and Others -v- France (application no. 27013/07)
The applicants are 25 French nationals acting on their own behalf and on behalf of their minor children.
Lawal – v – Circle 33 Housing Trust Limited  EWCA Civ 1514
By David Watkinson (retired barrister) and Chris Johnson (Travellers Advice Team)
In R (JL) – v – Secretary of State for Defence  EWCA Civ 449, the Court of Appeal upheld the Judge at first instance who had held that a proportionality argument could be raised at the enforcement stage of a possession order (i.e. after it had been made and when a writ or warrant to bailiffs to execute the order had been issued) although only in exceptional cases, otherwise it would be an abuse of the process of the court to do so. Such a case could be where “there is a fundamental change in the occupants’ personal circumstances after the making of a possession order but before its enforcement” (para 41) or, as in this case, the state of the law at the time of the possession hearing was that the proportionality argument could not be made (para 42). In the recent Court of Appeal Judgment in Lawal – v – Circle 33 Housing Trust Limited ( EWCA Civ 1514), the Court of Appeal added a case where an Article 8 defence had been advanced before the first instance judge but she “either declined to hear it or peremptorily dismissed it but in either case, she gave no reasons for doing so” (para 90, Sir Terence Etherton LJ).
To read the Judgment in this case, see: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2014/1514.html&query=Lawal+and+v+and+Circle+and+33&method=boolean
McDonald -v- McDonald [2014} EWCA Civ 1049 24 July 2014
Ms McDonald was an assured shorthold tenant of a private landlord. Eviction action was taken against her on the basis of the automatic ground for possession contained in Housing Act 1988 section 21. One of her grounds of defence was reliance on Article 8 of the European Convention on Human Rights ( the right to respect for private and family life and home). The question, in terms of this ground, for the Court of Appeal, was whether she could rely on this ground of defence in an action involving a private landlord.
Southend-on-Sea Borough Council -v- Armour  EWCA Civ 231, 12 March 2014
This is not a Gypsy or Traveller case but is very important from the point of view of Article 8 of the Human Rights Act 1998. Mr Armour was an introductory tenant of the local authority. After three incidents of anti-social behaviour early on in the tenancy, the Council began proceedings for possession.
Leicester City Council – v – Shearer  EWCA Civ 1467, 19th November 2013
This is not a Traveller case but is an important reminder that a judicial review challenge can be successful even in cases involving trespassers. The facts were quite complicated but, to simplify them somewhat, Mrs Shearer ended up living in the property that had been the tenancy of her husband. Her husband had committed suicide.
Malik -v- Fassenfelt  EWCA Civ 798, 3 July 2013
This case involved certain people who were squatting on a derelict piece of land owned by a private landowner as a protest against the proposal for a third runway at Heathrow Airport. The defendants attempted unsuccessfully to argue article 8 in their defence.