Guernsey Legal Resources

Karen Leslie Jolly has appealed under s.56 of the Housing (Control of Occupation) (Guernsey) Law 1994 against decisions of the Housing Department in relation to applications made by the appellant (a) for a housing licence; and (b) under s.10(2)(j)(iii) of the 1994 Law, that she be treated as if she had held a housing licence whilst living with her parents in their “open market” house.

4 In February 1988, the appellant was studying at university in England and after graduating she took up employment in Guernsey. She qualified as a Chartered Secretary in 1997, she has a Master’s degree in Corporate Governance and in February 2008 she was elected a Fellow of the Institute of Chartered Secretaries. She has held a number of jobs in Guernsey and since 2000 she has been employed by the Bacon & Woodrow (now BWCI) Group.

5 The appellant lived with her parents until she was granted a housing licence to live elsewhere. The appellant’s sister, her only sibling, has remained in Guernsey where she is married to a locally-qualified resident and they have a five-year-old child. So, the appellant has strong familial connections with Guernsey.

7 On May 10th, 2002, Advocate Ferbrache wrote again with further arguments in support of her application and asked that it be reconsidered. By letter dated August 5th, 2002, the Department rejected the application but advised that it would consider the grant of a licence if she applied for a licence conditional on a specific post of employment, or if she applied after completing 16 years of ordinary residence in Guernsey.

8 The appellant’s employer then wrote on August 30th, 2002 requesting that a housing licence be issued to her in connection with her employment. By letter dated December 18th, 2002, the Department informed the appellant’s employer that it had agreed in principle to grant a 5-year licence. It imposed restrictions on the accommodation she could occupy, one of which was that it must have a rateable value above a specified minimum to be determined by reference to her remuneration package. A housing licence was then issued for 5 years from February 18th, 2003 in respect of a house called “Pied Des Monts,” Delancey, St. Sampson.

9 On February 6th, 2007, Advocate Ferbrache wrote to the Department advising that the appellant would be applying for a further licence to be issued upon the expiry of the 5-year licence. He asked:

“If there are any material documents, policies or considerations that I, on behalf of my client, should bear in mind, I would be grateful if you would draw those to my attention now, including the current thinking of the Department in respect of such a licence application or similar ones.”

10 The Department replied on April 10th, 2007 indicating that it would be willing to grant her a further licence which, it said, would be subject to restrictions that would require her to live either in lodgings or in her own property, provided she shared it with a qualified resident or a licence-holder. It also informed her that, by virtue of s.10(2)(j) of the 1994 Law, she would achieve qualified residential status on February 18th, 2023 if she continued to hold valid licences and remained ordinarily resident in Guernsey until that date.

11 On June 20th, 2007, the appellant emailed the Department in anticipation of the change from rateable values to the new regime of tax on real property and asked what would be the new restriction equivalent to a rateable value of £60. In its reply, the Department drew attention to the

13 On January 21st, 2008, Advocate Ferbrache wrote to the Department requesting a housing licence to take effect on the expiry of her 5-year licence. He asked that “if she wants (which is not her current intention, but who knows where life will take one), she can leave Guernsey and return and still be regarded as a ‘local market’ person.” He said that she was seeking to enjoy the same rights as are enjoyed by a qualified resident.

14 The Department, in its reply dated February 12th, 2008, advised that it had decided to grant a housing licence to the appellant which was to be valid for one year only. The letter stated: “At the end of this period, due consideration will be given to the renewal of the licence. If [the appellant’s] circumstances remain unchanged, the licence will be renewed upon written request.” The Department said it would not consider a hypothetical possibility of her leaving the Island but, if the possibility of a move became a more serious consideration, the appellant should approach the Department at that time.

15 Advocate Ferbrache replied on March 4th, 2008. He said the licence was unsatisfactory in requiring the appellant to apply again at the end of the year if her circumstances remain unchanged. He asked what was meant by her “circumstances remaining unchanged.” He said it was unfair for her to have to continue in that way for the next 15 years as it was an unreasonable interference with her private life and generally, as well as being an administrative encumbrance. He sought to clarify whether the licence was subject to accommodation restrictions. He submitted that her career would be disadvantaged because an employer in the finance industry would look unfavourably upon the fact that she has effectively only a one-year licence. He asked again what would happen if she worked outside the Island, or otherwise left the Island, for a two-year period.

16 In that letter, Advocate Ferbrache also asked the Department to issue a notice under s.10(2)(j)(iii) of the 1994 Law, the effect of which would have been to confer qualified residential status on the appellant. The section provides:

“(2) The following persons are qualified residents—

. . .

(j)    a person who has been ordinarily resident in Guernsey for a period of not less than 20 consecutive years and who

ii(i)    [under a housing licence];

i(ii)    under or by virtue of successive such licences; or

(iii)    otherwise than under or by virtue of such licences but in circumstances which, in the [Department’s] opinion stated in a notice served on that person, are such that his period of occupation should be treated as being occupation under or by virtue of such licences…”

17 The Department’s reply was dated April 7th, 2008. In relation to the request for a notice under s.10(2)(j)(iii) of the 1994 Law, it had looked at the request by considering whether the appellant would ever have been granted a housing licence. It decided, first, that her circumstances would not have justified the grant of a licence that was not related to her employment during any of the period prior to the grant of her licence in 2003. It said that decision had been “informed by the fact that such an application” had been rejected by the Department on April 19th, 2002 and August 5th, 2002 when it dealt with her applications dated December 13th, 2001 and May 10th, 2002 respectively.

18 The Department also reviewed the various jobs the appellant had held and concluded that, during most of the time that she had been employed in Guernsey, the nature of her employment would not have justified an employment-related housing licence. However, since January 2002, the Department accepted that she had been employed in a post which merited such a licence. So the Department was prepared to treat the period of occupation since January 2002 as if it were occupation under a housing licence. Consequently, if she continues to be ordinarily resident and lawfully housed in the Island, she will attain qualified residential status in January 2022, one year earlier than the Department had previously indicated. By that date, she will have been resident in Guernsey for 34 years.

19 Regarding the current licence issued, the Department said it would be prepared to communicate with any employer to inform the employer that the licence will be renewed if her circumstances do not change, provided the Department has the appellant’s permission to do so. However, for the first year, the Department was keen to ensure stability in her living arrangements. Advocate Ferbrache described that latter remark as unnecessary when she had already been living in the house for five years under the earlier housing licence.

20 The Department advised that upon expiry of her current one-year licence, a further licence will be issued for a longer period although it did not indicate how long that period would be. It also said that if the

21 The Department declined to make a binding statement about what licence might be available to the appellant at some later date if her circumstances were to change or if she should spend time away from the Island and then request a housing licence upon her return.

22 This section of the judgment and the next section entitled “Article 8 of the Convention” contain the Deputy Bailiff’s considerations of the legal issues in the case and his directions thereon in his capacity as the sole judge of matters of law.

23 Section 56(1) of the 1994 Law provides that (subject to certain provisions which are not relevant in the present case)—

“. . . a person aggrieved by any decision of [the Department] under any provision of this Law may appeal therefrom to the Royal Court on the grounds that the decision was ultra vires or was an unreasonable exercise of the [Department’s] powers.”

The burden of proof is on the appellant and the standard of proof is the normal civil standard of the balance of probabilities. To prove something on the balance of probabilities means to prove that it is more likely so than not so.

24 Advocate Ferbrache reviewed a number of housing appeal decisions of the Court of Appeal and the Royal Court, from which he drew a number of general observations and conclusions, which I accept and adopt.

“a very formidable enactment… under its provisions [the Department] yield unusually extensive powers of control over the rights of many ordinary people… It places great and unusual power in the hands of [the Department]… such drastic power calls for meticulous care in its exercise and scrupulous balancing of the conflicting interests which it affects” (Ward v. States Housing Auth. (8) (20 GLJ 94, at paras. 2 and 33–34)).

“The existence of powers such as these is unusual in a democratic society and must be exercised with care and sensitivity to avoid any abuse of those powers” (Perkins v. States Housing Auth. (4) (20 GLJ 93, at p.66).

27 Advocate Ferbrache placed particular reliance upon Matheson v. States Housing Auth. (3) where Beloff, J.A., giving the decision of the Court of Appeal, said (26 GLJ 82, at p.70):

“. . . I recognise that it is a well established principle of public law, applicable to Guernsey, that a public authority such as the [Department], can have a policy as long as two conditions are satisfied. The first is that the policy conforms with the law; a policy cannot modify, extend, still less contradict such law. The second is that those who apply the policy are prepared to listen to reasons why it should not be applied in a particular case and in consequence, in appropriate circumstances, to make exceptions to it.”

28 I have considered first the Department’s decision under s.10(2)(j)(iii) of the 1994 Law. The Department explained in its letter of April 7th, 2008 that it had approached the request by considering whether there was any period of time prior to 2003 in respect of which the appellant’s personal circumstances, or the nature of her employment, would have justified the grant of a licence if she or her employer had applied at that time.

29 H.M. Comptroller defended the Department’s interpretation of s.10(2)(j)(iii) by drawing attention to the material wording:

“. . . [O]rdinarily resident… for… 20… years… in occupation of a dwelling… in circumstances which… are such that his occupation should be treated as being occupation under or by virtue of such licences.”

He submitted that the Department was required to look at her historic circumstances. He stressed that the Department had to consider whether the appellant’s occupation had been “in circumstances which are such that” she should be deemed to have held a housing licence. The question was not whether “her circumstances now are such that” she should be deemed to have held a housing licence.

30 It is a powerful and attractive submission but I am concerned that it may lead to an unduly narrow interpretation. The Department’s approach will be sufficient if it leads to the conclusion that an applicant should be treated as if he or she had held a licence. In other cases, the Department will have to go further.

31 In my opinion, “circumstances” includes all relevant circumstances. That is, in this case, all the circumstances relevant to the appellant’s occupation of a dwelling in Guernsey throughout her period of residence. The Department said it looked at her circumstances during the period prior to the grant of a housing licence in 2003. It therefore did not look at her circumstances at the date of its decision in 2008 or in the period 2003 to 2008.

32 The Department must also have regard to the appellant’s rights under the Convention. Section 6(1) of the Human Rights (Bailiwick of Guernsey) Law 2000 provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

33 Advocate Ferbrache argued in the appeal that the appellant’s right to respect for private and family life which is protected by art. 8 of the European Convention on Human Rights has been infringed in this case. One of the facts he had asked the Department to take into account was the possibility that she might wish to leave the Island for, say, two years and upon her return to be able to continue to occupy a “local market” dwelling.

34 The Department’s response was that they would not consider the possibility that she might leave the Island whilst it was only a hypothetical possibility. It said:

“The Department is unable to make binding statements about what licence might be available to [the appellant] at some later date should there be a significant change in her personal circumstances. As you have rightly pointed out, we do not know what law or regime will be in place in the future and so it would be inappropriate to make commitments now for events that might or might not take place in the future. This applies both in relation to a licence for a different address and the ‘reactivation’ of a licence should [the appellant] opt to spend time away from the Island to the extent that she can no longer be considered to have been ordinarily resident in Guernsey during that absence.”

35 The Department does not know what law or regime might be in place in the future because the 1994 Law is in force for a limited duration only. It was initially to remain in force only for 10 years. It has been extended on three occasions and at the November meeting of the States of Deliberation, the States will be asked to extend it again, from June 30th, 2009 to December 31st, 2011. It is not known what will happen thereafter. There may be a completely new Law that might be radically different from the present.

36 If the appellant leaves the Island for a period of two years and, during that period, establishes a home elsewhere, she will cease to be ordinarily resident in Guernsey, she will lose her housing licence, she will not know where she will be able to live upon her return and (if the requirements for qualified residential status have not changed) she will lose the benefit of the years that she has accrued and will have to be ordinarily resident under a housing licence (or in circumstances that are deemed to be under a licence) for another 20 years after her return before becoming a qualified resident.

37 Whereas, if she is granted the status of a qualified resident, she would not lose that status if she leaves the Island and she would be able to live in a “local market” property on her return.

38 It is to be noted that if she had been a minor when her parents moved to Guernsey, she would have qualified as a local resident after 20 years, i.e. in February 2008. Instead, she was too old by 3 years and one month.

39 In administering the 1994 Law, the Department must have regard to any rights protected by the Convention, as the European Court of Human Rights made clear in Gillow v. United Kingdom (2) and the Court of Appeal and Royal Court have since repeated on a number of occasions. That is especially so following the incorporation of Convention rights into our domestic law.

    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.”

41 By reference to a number of decisions, including Pretty v. United Kingdom (5) and Connors v. United Kingdom (1) as well as the Royal Court decision in Thomas v. Housing Dept. (Minister) (6), Advocate Ferbrache submitted that “private life” is to be given a wide interpretation. He relied upon Pretty (35 EHRR 1, at para. 61):

“. . . [T]he concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person… Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world… [T]he Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”

He also quoted from Lester & Pannick, Human Rights Law & Practice, 2nd ed., para. 4.8.2, at 261 (2004):

“Article 8 protects far more than privacy simpliciter. Like other international human rights guarantees, it demands respect for a broad

The Department had to ensure it was acting in a way that was compatible with the appellant’s rights or its decision would have been rendered unlawful (Human Rights (Bailiwick of Guernsey) Law 2000, s.6).

42 The appellant alleges that the Department failed to have regard to the appellant’s right to respect for her private life. The burden is on the appellant to show that interference has occurred. The Department must then justify any interference under art. 8(2) (see Thomas (6)).

43 The Court of Appeal and the Royal Court have previously said that the Department must state in writing the basis on which it reached its decisions (see, for example, the judgment of Carey, Bailiff in X v. States Housing Auth. (9)). The written decision communicated to the appellant via her advocate should have demonstrated that the Department had considered whether its decision under s.10(2)(j)(iii) of the 1994 Law was compatible with art. 8.

44 In my view, in considering whether the decision was compatible, the Department was required to look at all the appellant’s circumstances as at the date of its decision in 2008. It was not sufficient to refuse the application on the grounds that it would not have granted a housing licence prior to 2002 if, at any time prior to that date, the appellant had applied for a licence.

45 The Department failed to consider all the circumstances, in the round, of the appellant’s occupation of Guernsey dwellings prior to the date of the decision. It is also unable to demonstrate that it had properly considered whether its decision was compatible with the appellant’s Convention rights. I have therefore concluded that the appeal must be allowed and the matter must be referred back to the Department for fresh consideration.

46 There is strictly no need to go further in this judgment but the Jurats have heard argument in relation to art. 8 and they have unanimously formed a view that the appellant’s right to respect for her private life may have been infringed. They therefore wish to state their view in the hope that it may assist the Department when the Department comes to assess whether any fresh decision will be compatible with such right. As Beloff, J.A. said in Walters v. States Housing Auth. (7) (24 GLJ 76, at p.45): “We can see the good sense of the States of Guernsey in allowing the Jurats to provide a check against unreasonable decisions in this complex and emotive area.”

47 The Jurats have found, as a fact, that the Department’s decision amounted to an interference with the appellant’s right to respect for her private and family life under art. 8(1). In its reconsideration, the Department must decide whether its fresh decision could also be an interference and, if so, whether such interference with her rights can be justified under art. 8(2).

48 The Jurats do not wish to pre-empt that decision because they may not have all the relevant facts before them. However, they wish to draw attention to the fact that if the appellant had been 3 years and one month younger when she and her parents moved to Guernsey, she would now have qualified as a resident under s.10(2(k); the Department is currently advising that she will not qualify as a local resident until she has been here for 34 years. The Jurats do not know how many other professionally qualified people may be in a similar position to the appellant but they suspect it is unlikely that large numbers of such people aged in their 30s or 40s are still living with their parents in “open market” properties. The question of proportionality is one for the Department to consider and the court expects that it will do so with the scrupulous care required.

49 The relevant circumstances that must be considered include the following. The appellant has been ordinarily resident in Guernsey since the age of 21. Guernsey is home to her and to members of her family. She has worked, and studied, hard to improve her position. She is professionally qualified and in 2008 was elected a Fellow of the Institute of Chartered Secretaries. She is employed in a post in the finance industry which, the Department has accepted, is of sufficient essentiality to justify a housing licence. She lived at home until she was 36 years old. She has indicated it is her desire to continue to have her permanent home in Guernsey. In all likelihood, she will occupy a dwelling in Guernsey for the rest of her life and the Department has already accepted she may occupy a “local market” dwelling. The Department has said that she could achieve local residential status in 2022, after 34 years’ residence when she will be 55 years old. The appellant has argued she would like to be able to leave

50 Advocate Ferbrache has tended to emphasize the possibility that the appellant might wish to leave the Island for 2 years. Even if that possibility had not been raised, the Department would have to look at all her circumstances in deciding whether to apply the provisions of s.10(2)(j)(iii) of the 1994 Law and in deciding whether its decision is compatible with her Convention rights. Granting “local market” status to the appellant will not deprive a local family of a home as she is already in “local market” accommodation. Yet, denying her such status will deprive her of the opportunity to better herself by moving away for a period of time if she wishes or if she is requested to do so by her employer (who has offices in other jurisdictions). It also leaves her with the constant worry that at the end of her licence period she will have to disclose her circumstances to the Department, which may form the view that her circumstances have changed to an extent that the licence cannot be renewed. If so, she would have to move out of her home and find alternative accommodation in the Island or elsewhere. The Department has not explained what would amount to a change of circumstance and even during the hearing of this appeal, H.M. Comptroller was unable to say what changes in her circumstances would be regarded as relevant and could result in the loss of her licence. The Department has not said for what period it will renew the current licence if it decides that the appellant’s circumstances are unchanged when it expires in 2009. If the licence is renewed for a further period on one or more occasions, the appellant will always have the worry that something may happen to her that will result in the loss of her home at the end of the period.

51 The appellant asked the Department to consider the circumstances in which she had been ordinarily resident and in occupation of dwellings in Guernsey from 1988 to 2008 and then to exercise in her favour its discretion under s.10(2)(j)(iii) of the 1994 Law to regard her occupation as being under a housing licence so that she could be deemed to be a qualified resident. The Department looked to see whether at any time prior to 2003 it would have granted her a housing licence if she had applied (she had held a licence from 2003 to 2008). In the view of the Deputy Bailiff,

52 When reconsidering the application, the Department must have regard to the appellant’s Convention rights and decide whether its decision is compatible with her rights, especially the art. 8 right to respect for private and family life. If any of her rights might be infringed, it must then decide whether such interference can be justified; in the case of her art. 8(1) rights, that would mean justification under art. 8(2).