By Dr. Koldo Casla, Lecturer in Law and the Director of the Human Rights Centre Clinic
In the 2008 case of McCann v UK, which concerned the eviction of a family renting a house from a local authority in England, the European Court of Human Rights established that:
“(T)he loss of one’s home is a most extreme form of interference with the right to respect for the home. 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”.Para 50, emphasis added
In a decision on admissibility ten years later, FJM v UK, the Court restricted the principle above to evictions in the public sector. Despite the wording in McCann, the proportionality test would not really apply to any person, but only to tenants in the same situation McCann found himself in, namely, social/public housing tenants.
In my new article in European Human Rights Law Review, I argue that the European Court of Human Rights should reconsider the position expressed in FJM v UK, and establish that evictions with no proportionality test are contrary to the right to home of Article 8 ECHR, also in the private rental sector
In FJM v UK, the European Court went as far as to say that, if tenants were entitled to require national judges to examine the proportionality of an eviction before ordering the possession of their home, ‘the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging’ (para 43, emphasis added).
This article shows that this need not be the case, and that in fact before reaching such a conclusion the European Court should have examined European comparative practice and national legal orders, as well as other human rights obligations. This article makes the case for a proportionality assessment of all evictions, irrespective of public or private ownership. The scope of the margin of appreciation requires an analysis of the common ground that may exist in European comparative practice and in light of other international human rights obligations accepted in the continent. The social function of homeownership provides the ground to achieve a better balance between the right to private property, the right to private and family life, and the right to housing.
Neither Article 11 ICESCR (on the right to adequate housing) nor Article 8 ECHR (on the right to home as part of private and family life) would give tenants a blank check to stop paying their rent or to break the lease in any other way. And giving judges the power to assess the proportionality of an eviction in the private rental sector would not fix all the housing problems. But it would be an important first step towards a more balanced relationship between landlords and tenants.
Article full citation: Koldo Casla, ‘Unpredictable and damaging? A human rights case for the proportionality assessment of evictions in the private rental sector’ (2022) (3) European Human Rights Law Review 253-272. Available on WestlawUK here (login required).