No admittance

Sharon Horie v the United Kingdom – 31845/10 [2011] ECHR 289

Back at the end of 2009 we reported the Supreme Court case of Secretary of State for Environment, Food and Rural Affairs v Meier and another, which upheld the use of a quia timet injunction – a prospective possession order – against a group of new travellers, preventing them from occupying any land owned by the Forestry Commission in the area.

Sharon Horie, one of the new travellers, applied to the European Court of Human Rights. This is the decision on the admissibility of the application.

The application was on the basis that:

20. The applicant complained that the decision to grant the injunction violated her rights under Article 8 of the Convention as it impacted on her ability to pursue her way of life as a New Traveller. She argued that Article 8 imposed on the State a positive obligation to facilitate the gypsy way of life (Chapman v. the United Kingdom [GC], no. 27238/95, BAILII: [2001] ECHR 43, ECHR 2001 I and Connors v. the United Kingdom, no. 66746/01, BAILII: [2004] ECHR 223, 27 May 2004) and in granting such a wide-ranging injunction the authorities were acting in violation of this obligation.

21. The applicant further complained that the domestic courts failed to consider the issue of proportionality before granting the injunction. In particular, she submitted that the House of Lords upheld the Court of Appeal’s decision in relation to the grant of an injunction without express consideration of proportionality.

The ECtHR decided otherwise and found the application inadmissible.

On the breach of Article 8:

The applicant had no right under domestic law to camp on any of the land covered by the injunction. The only change in her position effected by the injunction was the risk of imprisonment, which the domestic courts had expressed to be low.

The applicant had no right under Article 8 to establish a camp on the land. Article 8 did not require contracting states to make suitable sites available to gypsies (Chapman v UK). Even if new travellers were analogous to gypsies (on which more below), “Article 8 cannot be interpreted so as to require the Contracting States to tolerate unauthorised camping on land vested in the State.”

Finally, the Court is not persuaded that the injunction was sufficiently wide to interfere with the applicant’s way of life. Although it covered thirteen sites in Dorset, this would only have accounted for a small proportion of land in the county. Consequently, the Court does not accept that following the grant of the injunction, the applicant’s only option was to move to bricks and mortar accommodation. In particular, the Court notes that notwithstanding the shortfall of local authority sites available in the United Kingdom, many gypsies and other travellers still live an itinerant life without recourse to official sites and the possibility that vacancies on these sites might arise periodically could not be excluded.

In any event, if the applicant were to camp on Forestry Commission land not covered by the injunction, the Forestry Commission would be obliged to comply with its procedural code based on the 2004 Guidance before seeking eviction and failure to do so could vitiate its right to possession.

Application dismissed. However, in what would be called obiter remarks if the ECtHR has such a thing, the Court noted that “Unlike Romani gypsies, who are widely recognised as an ethnic group, and Irish Travellers, who are a traditionally nomadic people with their own culture and language, New Travellers live a nomadic lifestyle through personal choice and not on account of being born into any ethnic or cultural group”. While no submissions were sought on this issue and, in view of its findings, there was no need to decide on it, it appears that a distinction between ‘personal choice’ and ‘ethnic and cultural group’ is something that the ECtHR may in the future consider in relation to the ‘positive obligation to facilitate the gypsy way of life’.

Comment
That obiter remark may set down a marker for future cases, and it is an issue that we will revisit in our forthcoming report of the s.204 appeal hearing in Anya Thompson v Mendip District Council, Taunton County Court 3 December 2010.

But otherwise the only particular significance in this case is the clear line drawn between the ‘positive obligation to facilitate the gypsy way of life’ and a requirement to make suitable sites available to gypsies under Article 8, where the 2001 case of Chapman is relied upon.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Licences and occupiers, Possession and tagged , , , , , .

2 Comments

  1. Pingback: Law Blog Review: Diversity, Cricket, The future of blogging and lawyers…and more….. « Charon QC

  2. One does wonder whether the ‘obiter remark’ betrays the motivation for this decision.
    Aside from that, Supreme Court obviously trumps an admissibility decision so Gypsies and Travellers on unauthorised encampments ( subject to home, private and family life arguments etc) will have to rely on Pinnock. A rather unexpected reversal!

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