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Evictions from Unauthorised Encampements
‘Unauthorised encampments’ occur when Gypsies or Travellers stop on pieces of land not owned by them without the permission of the owner or occupier of that land. At any one time, roughly a quarter of the population of Gypsies and Travellers in England and Wales who live in caravans are forced to resort to unauthorised encampments.
A landowner or an authorised occupier of land has a basic, common law right to regain possession of that land from someone who trespasses on it without permission. However, in the case of public authority land, that right may be circumscribed to an extent by its powers, duties or obligations.
The relevance of Article 8
Article 8 of the ECHR states:
1. Everyone 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 prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Section 7 of the HRA 1998 allows a person to rely on their Convention rights in any court proceedings.
Over recent years, there has been an ongoing debate as to whether Gypsies and Travellers facing eviction from unauthorised encampments by public authorities could seek to use Article 8 as a defence to those proceedings, for example by arguing that there had been a failure to provide sites for Gypsies and Travellers in the area in question.
In Price & ors v Leeds CC in 2005, the Court of Appeal rejected the possibility of Article 8 as a defence in such proceedings. The Travellers then appealed to the House of Lords who heard the case, together with a case involving former tenants, in December 2005, giving judgment in March 2006 (Kay v LB Lambeth, Price v Leeds CC).
There was some disagreement as to if and when Article 8 (in terms of the right to respect for the home) might be engaged at all. The Travellers had only been on the land in question for some two days before the council started possession proceedings. However, the Travellers pointed out that they had been evicted over 50 times in the previous year and they had been asking the council for some time to provide them with authorised pitches.
Lord Hope referred to the caselaw of the ECtHR from which he derived the principle that:
“sufficient and continuous links are required for a house to be considered a ‘home’ for the purposes of article 8…”
He concluded that the applicants in the Price case had not established such sufficient links. However, and importantly, Lord Scott, whilst agreeing that, in this case, a ‘home’ had not been established, stated:
“It is clearly possible for a trespasser to establish a ‘home’ in property that belongs to someone else but whether and when he has done so must be matters of degree.”
Therefore a trespasser might be able to rely on Article 8 in any possession proceedings. However, the House of Lords in Kay & Price also concluded that, where the domestic law provided an absolute right to possession, it would only be in an exceptional case that Article 8(2) justification would not immediately be provided (an example of such a case being the ECtHR decision from 2004 in Connors v UK regarding the lack of security of tenure on local authority official sites – see further below).
In this context, it may be important to argue that, in any event, the right to respect for private and family life must be engaged. Thus Stanley Burnton J in R v Hillingdon LBC ex p Ward, stated:
‘So far as Article 8 is concerned, I do not think that plot 8, which Mr Ward had occupied as a trespasser for about a fortnight, could be said to be ‘his home’, but his private and family life are affected by the Council’s decision [to evict]. It is therefore necessary to consider whether the Council’s decision satisfies the requirements of Article 8.2.’
The position remains confused as to how far Article 8 can be relied on by a Gypsy or Traveller facing eviction from an unauthorised encampment in any public law defence.
A landowner or an authorised occupier of land has a basic, common law right to regain possession of that land from someone who trespasses on it without permission. However, in the case of public authority land, that right may be circumscribed to an extent by its powers, duties or obligations.
The relevance of Article 8
Article 8 of the ECHR states:
1. Everyone 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 prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Section 7 of the HRA 1998 allows a person to rely on their Convention rights in any court proceedings.
Over recent years, there has been an ongoing debate as to whether Gypsies and Travellers facing eviction from unauthorised encampments by public authorities could seek to use Article 8 as a defence to those proceedings, for example by arguing that there had been a failure to provide sites for Gypsies and Travellers in the area in question.
In Price & ors v Leeds CC in 2005, the Court of Appeal rejected the possibility of Article 8 as a defence in such proceedings. The Travellers then appealed to the House of Lords who heard the case, together with a case involving former tenants, in December 2005, giving judgment in March 2006 (Kay v LB Lambeth, Price v Leeds CC).
There was some disagreement as to if and when Article 8 (in terms of the right to respect for the home) might be engaged at all. The Travellers had only been on the land in question for some two days before the council started possession proceedings. However, the Travellers pointed out that they had been evicted over 50 times in the previous year and they had been asking the council for some time to provide them with authorised pitches.
Lord Hope referred to the caselaw of the ECtHR from which he derived the principle that:
“sufficient and continuous links are required for a house to be considered a ‘home’ for the purposes of article 8…”
He concluded that the applicants in the Price case had not established such sufficient links. However, and importantly, Lord Scott, whilst agreeing that, in this case, a ‘home’ had not been established, stated:
“It is clearly possible for a trespasser to establish a ‘home’ in property that belongs to someone else but whether and when he has done so must be matters of degree.”
Therefore a trespasser might be able to rely on Article 8 in any possession proceedings. However, the House of Lords in Kay & Price also concluded that, where the domestic law provided an absolute right to possession, it would only be in an exceptional case that Article 8(2) justification would not immediately be provided (an example of such a case being the ECtHR decision from 2004 in Connors v UK regarding the lack of security of tenure on local authority official sites – see further below).
In this context, it may be important to argue that, in any event, the right to respect for private and family life must be engaged. Thus Stanley Burnton J in R v Hillingdon LBC ex p Ward, stated:
‘So far as Article 8 is concerned, I do not think that plot 8, which Mr Ward had occupied as a trespasser for about a fortnight, could be said to be ‘his home’, but his private and family life are affected by the Council’s decision [to evict]. It is therefore necessary to consider whether the Council’s decision satisfies the requirements of Article 8.2.’
The position remains confused as to how far Article 8 can be relied on by a Gypsy or Traveller facing eviction from an unauthorised encampment in any public law defence.
