British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> ALI, APPEAL BY SHAKAR OMAR ALI AGAINST (1) SERCO LTD, (2) COMPASS SNI LTD AND (3) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2019] ScotCS CSIH_54 (13 November 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_54.html
Cite as: [2019] CSIH 54, [2019] ScotCS CSIH_54, 2020 Hous LR 2, 2020 SC 182, 2019 SLT 1335, 2019 GWD 36-581
[New search] [Printable PDF version] [Help]
Page 1 ⇓
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk
Lord Drummond Young
Lord Malcolm
[2019] CSIH 54
A199/2018
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the APPEAL
by
SHAKAR OMAR ALI
Pursuer and Reclaimer
against
(1) SERCO LIMITED, (2) COMPASS SNI LIMITED AND (3) THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Defenders and Respondents
Pursuer and Reclaimer: Bovey QC, Dailly (sol adv); Drummond Miller LLP
1st and 2nd Defenders and Respondents: Connal QC (sol adv), Byrne; Pinsent Masons LLP
3rd Defender and Respondent: McIlvride QC, Gill; Morton Fraser
Intervener: The Scottish Commission for Human Rights
13 November 2019
Background
[1] The appellant is a failed asylum seeker. A claim made in her own right was
withdrawn, and a subsequent claim made which was dependant on a claim made by her
husband. That claim was refused and appeal rights were exhausted by 2 November 2017, at
which date neither the appellant nor her husband had an extant claim for asylum. During
Page 2 ⇓
2
the currency of their asylum claims the appellant and her husband had been provided with
temporary accommodation in accordance with the obligations incumbent upon the Secretary
of State for the Home Department in terms of section 95 of the Immigration and Asylum Act
1999 (“the 1999 Act”). That accommodation had been provided on behalf of the Secretary of
State by the first respondent, Serco Limited, and its subsidiary the second respondent (for
convenience referred to jointly as “Serco”) under a contract between the first respondent and
the Secretary of State. The accommodation was provided specifically in terms of an
agreement between the first respondent and the reclaimer. The preamble to the agreement
states:
“This Occupancy Agreement sets out the terms on which the Occupant occupies the
property (“the property”) leased by Serco as part of its contract with [sic] the SERCO
and UKVI and the duties and obligations of Serco and the Occupant. This property
is for temporary accommodation only.”
Clause 1 narrates that Serco agrees to make the property available to the Occupant, from a
specific date, on a temporary basis, on behalf of UKVI (ie UK Visas and Immigration), whilst
his/her asylum application is being assessed. Clause 2 narrates the Occupant’s obligations.
These include moving, if required by Serco or UKVI, to another property considered
appropriate, on a minimum period of seven days’ notice. Clause 4.1 and 4.2 state as follows:
“4.1 This agreement shall terminate upon the determination of the Occupant’s
asylum claim, subject to service of a written notice in terms of 4.2 hereof.
4.2 Serco may terminate this Agreement by serving a written notice on the
Occupant, specifying the date and time of, and the reason for the termination.”
No rent is payable in terms of the agreement.
[2] After the reclaimer’s asylum claim had been rejected with appeal rights expired or
exhausted, notice was served by the Secretary of State on 22 May 2018 that in these
circumstances support under section 95 was being discontinued and stating that by
Page 3 ⇓
3
concession support would be continued to 13 June but at that date the reclaimer would be
expected to quit the property occupied. Advice was given that if support continued to be
required after this date, an application could be made under section 4 of the 1999 Act, which
provides for support to failed asylum seekers where certain conditions apply. On 31 May
2018, Serco served notice advising that the right of the appellant and her husband to occupy
the flat in which they were accommodated was terminated as from 13 June 2018, and
warning them that if they did not vacate the flat by that date, legal action might be taken
through the courts to evict them. It seems that Serco thereafter adopted a new policy, of
changing locks and, without any court process, evicting asylum seekers whom it considered
to have no continuing entitlement to be provided with accommodation. It is maintained that
they have no right to do this.
[3] Put succinctly the principal question for determination of this court is whether the
Lord Ordinary erred in concluding that it was not unlawful under the common law nor
under articles 3 and 8 of the European Convention on Human Rights for Serco to evict the
reclaimer from the property she temporarily resides in without first obtaining a court order
authorising it.
[4] Under section 95 of the 1999 Act (read with Regulation 5 of the Asylum Seekers
(Reception Conditions) Regulations 2005), the Secretary of State has a duty to provide, or
arrange for the provision of, support for asylum seekers and their dependants who appear
to be destitute or likely to become destitute. By virtue of section 94 of the 1999 Act, “asylum
seeker” is a person not under 18 who has made a claim for asylum which has been recorded
but not yet determined; and a claim is “determined” at the end of a period which is
essentially (a) the period during which an in-country appeal against an adverse decision by
the Secretary of State may be brought (disregarding the possibility of an appeal out of time);
Page 4 ⇓
4
or (b) where an appeal is timeously made, 21 days after the appeal has been finally
determined, withdrawn or abandoned. The Secretary of State’s obligation to the appellant
in terms of section 95 came to an end with the failure of her asylum claim. The appellant
made an application under section 4 of the 1999 Act which was refused. A right of appeal to
the FTT is provided, both in respect of decisions under section 95 and decisions under
section 4.
The Pleadings
[5] It is important to recognise the circumstances in which the issues before the Lord
Ordinary arose for determination. This is not an action for judicial review. It is an action in
which the reclaimer seeks:
(i) declarator that she is entitled to be provided with accommodation under
section 95 “while her action for asylum is being determined”;
(ii) declarator that evicting her without a court order would be unlawful et
separatim unlawful in terms of section 6 of the HRA 1998, having regard to her
article 3 and 8 rights (a reference to A1P1 was not argued); and
(iii) interdict and interdict ad interim to prevent such eviction.
[6] The action came before the Lord Ordinary for discussion on the procedure roll of the
pleas of all respondents that the reclaimer’s averments being irrelevant and lacking in
specification, the actions should be dismissed, pleas which found favour with the
Lord Ordinary. The starting point for consideration of the Lord Ordinary’s decision must
therefore be the reclaimer’s pleadings. The reclaimer avers that:
(i) a fresh asylum claim had been made;
Page 5 ⇓
5
(ii) she is a “residential occupier” of the property in terms of section 22(5) of the
Rent (Scotland) Act 1984 (“the 1984 Act”), since she occupies the property under a
contract. It is thus an offence unlawfully to deprive her of occupation (section 22(1);
(iii) the respondents are not unlawfully entitled to terminate the occupancy
agreement while a fresh asylum claim is extant since this would be an offence;
(iv) separatim the occupancy agreement meets the cardinal elements of a lease
requiring an action for recovery of possession of heritable property before she could
be ejected. The consideration under the lease is “the fee paid by the third defender
from the commencement of the occupancy agreement, calculated in relation to the
number of occupiers. Said fee is a third party payment in relation to the pursuer and
husband’s occupation akin to third party payment of means tested housing benefit
by local government landlords.”
(v) Separatim changing the locks or ejecting the pursuer without a court order is
an unlawful act under section 6 of the Human Rights Act 1998 (“the HRA”). Serco
carries out functions of a public nature on behalf of the Secretary of State. Serco is a
public authority for the purposes of the HRA and cannot act incompatibly with
Convention rights. “The pursuer is an asylum seeker.” The threat of ejection without
due process is degrading treatment under article 3 ECHR; the threat of changing the
locks is “incompatible with the pursuer’s convention rights under article 8”. She has
a right to challenge the proportionality of her eviction before an independent
tribunal.
In support of the claim for interdict it is averred that the reclaimer “has a live asylum
application and has a right to occupy the property”.
Page 6 ⇓
6
[7] It was a matter of agreement before the Lord Ordinary that the reclaimer is not,
contrary to her pleadings, an asylum seeker and it is not disputed that her claim has been
determined as defined under section 94 of the 1995 Act. She is not entitled to support under
section 95 of that Act. In so far therefore as any aspect of her case hinges on the averments
that she is an asylum seeker with a live claim, it is doomed to failure. Several arguments
advanced during the reclaiming motion were not advanced to the Lord Ordinary and had
no foundation in the pleadings. Again, on the issues of relevancy and specification these too
are doomed, although to some extent we have dealt with the substantive points in any
event.
The Lord Ordinary’s decision
[8] The Lord Ordinary dismissed the reclaimer’s arguments. He concluded:
i.
That while section 22 of the Rent (Scotland) Act 1984 (“1984 Act”) made it a
criminal offence unlawfully to deprive someone of property, it did not create any
new civil right in favour of a residential occupier.
ii. Section 23A(5A) of the 1984 Act specifically excluded the reclaimer from the
statutory protections contained in section 23 thereof, although any common law
rights she may have were retained.
iii. The circumstances did not disclose the existence of a lease, one of the cardinal
elements thereof, namely rent, being absent. There was thus no common law
protection upon which the reclaimer could rely.
Page 7 ⇓
7
iv. Serco was acting in place of central government, carrying out a ‘humanitarian
function”, irrespective of the fact it was being paid under a commercial contract. It
was thus a “public authority” for the purposes of section 6 of the HRA 1998.
v. There was no breach of article 8 ECHR: there were sufficient procedural
safeguards to satisfy the applicant’s article 8 rights without the need for a court order
authorising eviction. The statutory scheme was a lawful one, under which a right of
appeal to the FTT against an adverse decision under section 95 or section 4 enabled
any arguable issue of proportionality to be raised before and determined by an
independent tribunal.
vi. There was no breach of article 3 ECHR. There was no authority for the
proposition that a threat of ex hypothesi lawful termination of possession of
temporary accommodation was capable of constituting degrading treatment of the
minimum level of severity necessary to amount to a breach of article 3. In the case of
failed asylum seekers there was specific provision to provide accommodation under
section 4 should that be necessary to protect convention rights.
vii. The terms of the Occupancy Agreement made it clear that termination was
subject to service of a written notice specifying the date and time of, and the reason
for, the termination. The notice period was imposed by statute inter alia to allow
time for the occupant, prior to removal, to take any further steps available to him or
her that might result in a prolongation of occupancy of the property. The onus of
initiating any further action rested upon the asylum seeker and not on the Secretary
of State. The action taken was contractually available.
Page 8 ⇓
8
The reclaiming motion
[9] The reclaimer submits that the Lord Ordinary erred in all matters save for the
decision that Serco was acting as a “public authority”. The respondents argue that on this
latter point only did the Lord Ordinary fall into error. In a written intervention the Scottish
Commission for Human Rights submit that the Lord Ordinary erred in holding that the
statutory scheme, including the appeal provisions, provided sufficient protection of the
reclaimer’s rights under ECHR.
Submissions for the reclaimer
[10] Senior Counsel for the reclaimer submitted arguments under the following five
headings.
I.
Whether eviction in the present circumstances could take place without court order.
[11] The reclaimer was not afforded statutory protection under the 1984 Act, but retained
certain common law rights. Ejection brevi manu would only be competent where the remedy
of “ejection” was competent, the essence of the remedy being that the acquisition of
possession was vi clam aut precario, see Asher v McLeod 1948 SC 55, at p58. The reclaimer’s
occupancy did not have that quality, being under a contract, and summary ejection was not
available: Lowe v Gardiner 1921 SC 211,at 218; Hally v Lang (1867) 5 M 951.
II. Whether a lease exists
[12] The “rent” requirement for a lease did exist, the consideration being paid to Serco by
the Secretary of State. Separately, in an argument not advanced to the Lord Ordinary it was
submitted that the principle of jus quaesitum tertio applied: Craigie v Reid. It was irrelevant
that the beneficiary in Craigie had paid the rent. The agreement between the respondents
was intended to benefit asylum-seekers like the reclaimer and her husband. It was not
Page 9 ⇓
9
necessary for the agreement to identify by name the reclaimer as an intended beneficiary,
the identification of a category of beneficiary was sufficient: McLaren Murdoch and Hamilton
III. Whether Serco is a body whose actions were in the nature of a “public authority”
[13] The HRA 1998 did not exhaustively define “public authority” but recognised that it
included any person whose functions are of a public nature. There was no single test of
universal application. Factors to be taken into account included the extent to which, in
carrying out the relevant function, the body was taking the place of central government or
local authorities- Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with
Birkenhead. A purposive construction of section 6 indicated that the essential characteristic
of a public authority were that it carried out a function of government which would engage
the responsibility of the United Kingdom before the Strasbourg organs (ibid para 160, per
Lord Rodger), as did the provision of accommodation for asylum-seekers: R (Limbuela) v
Secretary of State for the Home Department [2006] 1 AC 396.
IV. The applicability of article 3 of the convention
[14] A threat of ex hypothesi lawful termination of possession of temporary
accommodation was capable of constituting degrading treatment of the minimum level of
severity necessary to amount to a breach of article 3: R (Limbuela). Even in the absence of
bodily injury or intense suffering, treatment which humiliates or debases an individual may
V. The lawfulness of Serco’s actions in terms of convention rights
[15] The requirement of lawfulness expressed in article 8 demanded more than
Page 10 ⇓
10
loss of one’s home was a most extreme form of interference with the right under article 8.
Any person at risk of an interference of this magnitude should in principle be able to have
the proportionality and reasonableness of the measure determined by an independent
tribunal in the light of the relevant principles under Article 8, notwithstanding that, under
domestic law, she has no right of occupation: Yordanova v Bulgaria 25446/06 [2012] ECHR
758.
[16] The Lord Ordinary failed to have regard to the procedural safeguard afforded by
requiring utilisation of actions for recovery of possession. R(N) v Lewisham LBC [2015] AC
1259 was a homelessness case determined under English law and was not analogous. The
safeguards noted by Lord Hodge at [64], [69]-[71] were not present in this case.
Submissions for the Secretary of State
I. Whether eviction in the present circumstances could take place without court order.
[17] The reclaimer’s position on record was that a court order was necessary as she was a
“residential occupier” within the meaning of s22 of the 1984 Act or, alternatively, because
she occupied the property under a contract of lease. The Lord Ordinary was well founded
in rejecting both arguments.
[18] The reclaimer’s new proposition, that the common law of Scotland prohibited the
recovery of residential property without a court order if the occupier entered into possession
under a contract (even if not a contract of lease), was also unsound. There was no such
prohibition (Macdonald v Duchess of Leeds (1860) 22 D 1075; Macdonald v Watson (1883) 10 R
1079), provided the occupier was given reasonable notice (Sinclair v Tod 1907 SC 1038 and
see Reid, Property (Stair Memorial Encyclopaedia), para 156; Stalker, Evictions in Scotland
(chap 2, p 20, 27).
Page 11 ⇓
11
[19] An action for ejection was competent where the occupier possessed the property
precario – i.e. without title and at the tolerance of the owner- Cairns v Innes 1942 SC 164;
Wallace v Simmers 1960 SC 255. The observation in Lowe to the effect that precariousness
must be determined at the time a party has taken occupation was unsound as the occupation
in question may subsequently be rendered precarious when the occupier has lost any right
occupation of the property had at all material times been precario.
II. Whether a lease exists
[20] The reclaimer made no averments which, if proved, would entitle the court to hold
that a jus quaesitum tertio had been conferred. She made no averments of any provision in
the contract to the effect that Serco may not remove individuals from section 95
accommodation without a court order or from which such a right could be implied; nor any
averments of an intention on the part of Serco and the Secretary of State that the reclaimer
should benefit from such a provision and have a right to enforce it.
III. Whether Serco is a body whose actions were in the nature of a “public authority”
[21] The international obligations of the UK were implemented by the Secretary of State
in fulfilling her duty under section 4 or section 95 of the 1999 Act to “provide, or arrange for
the provision of, facilities for the accommodation of” a person, where circumstances require.
It did not follow that the private company with which the Secretary of State made
arrangements for the provision of accommodation was also, separately, implementing the
international obligations of the UK. Such a conclusion elided the distinction, fundamental to
public function of an authority in making arrangements for the provision of accommodation
and (b) the private law obligations and activity of a private company in providing the
Page 12 ⇓
12
accommodation under contract with the authority. The Lord Ordinary accordingly erred in
concluding that Serco’s provision of accommodation was “[t]he implementation by the UK of
its international obligations to receive and provide essential services to destitute people seeking
asylum”.
[22] As far as Serco itself was concerned, the activity was a purely commercial one. It
was not suggested that Serco received any public subsidy or that any statutory powers were
conferred upon it. Nor had the reclaimer offered to prove any facts or circumstances which
could displace the obvious inference that Serco is providing services under its contract with
the third defender with a view to profit.
[23] Adapting Lord Scott’s description of the care home provider in YL at [26], it could be
said that none of the reclaimer’s averments, if proved, would entitle the court to hold that
Serco was anything other than “a company carrying on a socially useful business for profit”, being
“neither a charity nor a philanthropist”; and “operating in a commercial market with commercial
competitors”. The Lord Ordinary thus also erred in concluding that the provision of
accommodation was “not in any sense a commercial activity” because “[t]here is no element of
choice or competition so far as the occupants are concerned”.
[24] The Lord Ordinary’s observation that the provision of accommodation by Serco “has
more in common with the exercise of coercive functions […] than with the mere contracting out of a
service by a public authority” at [32] was unsound. Proof of the reclaimer’s averments would
not entitle the court to hold that Serco’s provision of accommodation could properly be
characterised as ‘”coercive”, comparable to the power of a private security firm to hand-cuff
a prisoner when escorting him out of the prison estate for a medical appointment, which
was the matter under consideration in Campbell v Scottish Ministers [2017] CSOH 35. No
coercion applies to someone in the position of the appellant. Support was granted on her
Page 13 ⇓
13
own application, and it remained open to her to refuse the accommodation offered. That
may involve a stark choice between the accommodation offered and homelessness but it did
not follow that the Secretary of State was exercising a coercive power in providing the
accommodation.
[25] In any event, none of the reclaimer’s averments, if proved, would entitle the court to
hold that the giving of notice of the proposed lock-change amounted in the circumstances to
anything other than an act of a private nature.
IV. The applicability of article 3 of the convention
[26] The Lord Ordinary correctly identified the test for severity sufficient to amount to a
What was required was, per Pretty, treatment “capable of breaking an individual’s moral and
physical resistance”. The reclaimer had made no averments relevant to establishing such
severity of treatment.
V. The lawfulness of Serco’s actions in terms of convention rights
[27] The Lord Ordinary had correctly identified the question for determination by the
court at paragraph 36 of his opinion in the light of the guidance provided by the Supreme
Court in Lewisham. He directly considered the question of “appropriate procedural
safeguards”.
[28] The requirement for an opportunity for the question of proportionality to be
determined by an independent tribunal was met by the availability of judicial review (as
contemplated by Lord Hodge in Lewisham at 68 and 71) or an ordinary action such as the
present proceedings, or in the right of appeal to the FTT against section 4 support. The right
to appeal withdrawal of section 95 support was not relied upon.
Page 14 ⇓
14
Submissions for Serco
I.
Whether eviction in the present circumstances could take place without court order.
[29] None of the reclaimer’s arguments gave rise to the kind of entitlement which could
allow the court to ignore the provisions, and express exclusions, set out in the 1984 Act. As
discussed in Conway v City of Glasgow Council 1999 Hous LR 20, the only sensible conclusion
was that the intention of Parliament was that those in the list of exemptions under section
23A of the 1984 Act did not have protection. There was no binding, let alone, persuasive
authority to support the argument that there was a preserved common law entitlement
imposing an obligation to use court proceedings in every case. In Conway it was held that an
occupier of temporary accommodation was entitled to reasonable notice only.
[30] There was a very slender authoritative basis for a distinction between the former
processes of removing and ejection, with eviction brevi manu only allowed where ejection
was competent. The division between removing and ejection was described by the
Lord President (Clyde) in Lowe at 216 as “not always readily understandable” and
“productive of misunderstanding- even miscarriage”.
[31] There were a number of examples of ejection or brevi manu eviction being held to be
lawful - Sinclair v Tod 1907 SC 1038; Scott v McMurdo 1869 6 SLR 301; Wallace v Simmers 1960
SC 255; Macdonald v Watson (1883) 10 R 1079. Both Professor Reid (Stair on Property Pt 1
(General Law), vol 18 at 128 & 152-157) and Stalker on Evictions at 27 and 190) conclude that
“self-help” means were available in the case under discussion.
II. Whether a lease exists
[32] The Lord Ordinary’s reasoning as to the absence of the requirements of a lease was
sound. In the absence of pleadings it was not open to the reclaimer to advance an argument
Page 15 ⇓
15
based on jus quaesitum tertio. There was in any event no basis upon which such an argument
would meet the requirements of the principle.
III. Whether Serco is a body whose actions were in the nature of a “public authority”
[33] On close examination the dicta of the court in YL supported the respondents’
position that Serco was not carrying out acts of a public nature in terms of section 6 of the
HRA 1998. Serco was not a public or charitable body, was not regulated other than by its
commercial contract with the Home Office, and did not require special registration to carry
out its task. It was carrying out a commercial service for a commercial fee, and was not
publicly funded or subsidised.
[34] There was no element of “coercion” applied by Serco, which was without statutory
powers and merely made accommodation available to those identified by the Home Office.
The critical act, namely the termination of the right to occupy, was carried out by the Home
Office, which served the statutory notice to quit, not Serco. By the time Serco were advised,
this had already been done and the right to occupy had ended. Serco’s own notice merely
reflected this.
[35] Alternatively the service of notice by Serco under the private licence and removal of
the occupier were par excellence private acts in terms of section 6- per YL at 34. By this point
the occupier’s status as an asylum seeker had ended, the entitlement to accommodation
under statute has vanished, and payment had stopped. At this stage the individual had no
special status and no anticipation of the use of governmental powers to house her.
Parliament had made it clear, in section 95, that section 4 apart, support could only be
provided to “asylum seekers”. The reclaimer was not an asylum seeker.
IV. The applicability of article 3 of the convention
[36] The court should proceed on the basis that there was a scheme in place capable of
Page 16 ⇓
16
operating lawfully and in accordance with Convention rights. Lewisham established that
removal from what might be described as a “home”, even by an undoubted public
authority, did not require the procedural burden of court proceedings in every instance.
Lewisham had also ruled that instances where a human rights proportionality argument
could influence the result were likely to be extremely rare. In such extremely rare examples
the ability to access a court by way of, for example, judicial review or interim interdict
would be sufficient.
V. The lawfulness of Serco’s actions in terms of convention rights
[37] It could not be said that the process was not in accordance with the law- it was
precisely in accordance with the Rent Act exemption. It met all the requirements of legal
protection, given the availability of judicial review and section 4 relief.
Submissions for the Intervener
[38] The Commission sought to provide background on how asylum support operated in
practice, to inform the context of the issues raised by the reclaimer and the experience of
being an asylum seeker. In sum it submitted that the Lord Ordinary’s error was in holding
that the system which he identified in terms of section 4, 95 and 103 of the 1999 Act afforded
relevant and sufficient protection. Lewisham was wrongly applied. There was no scope for
consideration of the proportionality of an eviction by an independent and impartial tribunal
within the process identified by the Lord Ordinary.
[39] The Commission did not disagree with the Lord Hodge’s analysis of the relevant law
in Lewisham, but that case was not dispositive of the current issues, turning on English
housing legislation.
Page 17 ⇓
17
[40] If the reclaimer was correct that at common law she had the right to eviction only by
a court order, her eviction would not be "prescribed by law" under Article 8.
[41] The relevant interference is the threatened eviction and it is this measure which the
occupant must be able to challenge before an independent and impartial tribunal, Yordanova
at [118]. The safeguards that were present in Lewisham, for example the right of advice and
assistance, review of the decision, and period of notice, were not present, and there there
were no comparable opportunities to be involved in the decision making process. There
were no procedures by which an independent and impartial tribunal could assess the
proportionality of the decision to evict and to determine any factual disputes.
[42] While not an automatic outcome, there was a real risk that many persons impacted
by lock changes were exposed to a credible risk of a breach of Article 3 if eviction occurred
before they could secure alternative accommodation on their own or via section 4 support.
Analysis and decision
[43] It was accepted by the reclaimer that the statutory protection afforded to tenants
under section 23 of the 1984 Act, prohibiting recovery of possession other than by
proceedings in the FTT, did not apply to her by virtue of section 23A(5A) of that Act. It was
submitted, and not disputed, that the reclaimer would continue to retain whatever common
law rights would attach to her circumstances, in accordance with the reasoning in Conway v
City of Glasgow Council, with which the Lord Ordinary is also in agreement. A critical
question is thus identification of any common law rights which the reclaimer may have. It
was argued that she had the rights of a tenant under a lease. We agree with the Lord
Ordinary that this argument is untenable. As the Lord Ordinary noted, the occupancy
agreement makes no provision for any consideration and we agree with him that:
Page 18 ⇓
18
“The situation is not therefore analogous to the satisfaction of a tenant’s obligation to
pay rent by remittance of housing benefit directly to the landlord; in the present case
there is simply no obligation to be satisfied.”
The Lord Ordinary was correct to conclude that therefore one of the four cardinal elements
of a lease was absent.
[44] Equally, there is no basis for the reclaimer’s argument that as an occupier under a
contract she could not be summarily evicted unless her occupation was, from the outset, vi,
clam aut precario. Rights of occupancy that do not amount to a lease have been considered in
a number of cases. An example is Macdonald v Watson, 1883, 10 R 1079, where the pursuers
sought damages from the owner of the property where they lived on the basis that they had
been illegally removed from that property. It was held that the pursuers had no lease or
other legal title to possess, and consequently that the owner of the property was entitled to
eject the occupiers without any warrant or charge. On that basis the action for damages
could not succeed: LP Inglis at 1082. This case is accordingly clear authority for the
proposition that an occupier without a lease may be evicted without proceedings in court.
To similar effect is Sinclair v Tod, 1907 SC 1038. In that case an employee was permitted to
occupy a house as part of the remuneration for his services, and following his dismissal he
was compelled to remove from the house through the removal of his furniture 12 days after
the termination of his employment. It was held that the former employee had no right to
damages for removal in this way. Lord Stormonth-Darling stated (at 1042):
“Now, looking to the cases … I cannot say that the defender was not entitled to act as
he did. After dismissal the pursuer’s title of possession had come to an end; and
although I do not think that the defender would have been justified in turning him
out the very next day, I cannot see that he had no right to turn him out in twelve
days, which was what he actually did”.
Lord Ardwall (at 1044) stated that a landlord does not require a warrant to remove a person
who has no title to possess, on the authority of Macdonald v Watson.
Page 19 ⇓
19
[45] Further authority to the same effect is found in Cairns v Innes, 1942 SC 164, where an
employee who had been called up for military service refused to vacate a cottage belonging
to his employer in which he and his family had been entitled to reside as part of his
contractual remuneration. The employer brought an action for ejection, and the court held
that procedure to be competent. LP Normand, after referring to Sinclair v Tod, held as a
matter of general principle that an employer who had dismissed an employee who had the
benefit under his contract of employment of occupying a dwelling house had the right to
force him to remove from the dwelling house by the process of summary ejection (at 171-
172). Lord Moncrieff (at 176) summarised the law as follows:
“The title so required by the defender to exclude an action of ejection must
accordingly be in all cases a title which de praesenti may be established as a title active
in his favour, and not merely a title which may be found to have been operative in
the past. It is clear that in this case no title, and in any event no such effective title, is
asserted by the defender. Indeed, the defender sets forth, whether past or present,
no right as tenant; he has been at no time the possessor of the subjects. The subjects
during the whole course of his employment were and remained in the ownership
and possession of his employer alone, while his contract of employment gave him
only a contractual right of occupation … If, accordingly, his only contract is at an
end, his right of occupation is equally ended”.
[46] Thus the owner of property is entitled to recover possession by means of summary
ejection in any case where a contractual right to occupy that does not amount to a lease has
come to an end. In the present case there is no lease, because of the lack of any obligation to
pay rent or other consideration. Consequently the reclaimer’s occupation of the property
has from the outset been precarious. The agreement under which she occupied the property
made clear that her occupancy was temporary only, for the limited duration of the period
during which her asylum claim was being assessed. Once that claim was assessed the
agreement provided for determination of the right to occupy, on service of written notice.
Thus occupancy was precarious, in the absence of any obligation to pay rent, and the first
Page 20 ⇓
20
respondents were entitled to proceed to summary ejection from the property. That does not
require court procedure.
[47] As to the arguments that a jus quaesitum tertio was created by the agreement between
the Secretary of State and Serco, there are no averments capable of instructing such a case.
In any event the argument advanced did not provide a basis for the creation of such a right.
The details of the contract in which it is said to arise are not specified; the circumstances in
which, or the basis upon which, it can be asserted that the parties to that contract expressly
or impliedly intended to create such a right in the reclaimer is not explained; and the exact
nature of the alleged right is left unclear. Moreover the creation of any such right would
directly contradict the specific terms of the agreement to which the reclaimer was a party,
namely the agreement for temporary occupation.
ECHR
[48] Leaving aside for the moment the issue whether the Lord Ordinary was correct in
classifying Serco in these circumstances as a public authority, in any event the reclaimer’s
cases on article 3 and article 8, as pled, have no merit. It is well appreciated that for conduct
to constitute a breach of article 3, it must meet a minimum level of severity. This usually
means actual bodily injury or intense physical or mental suffering. Yet the reclaimer’s
pleadings make no effort to grapple with this issue, nor did the arguments advanced. The
claim is, in the first place, based on the erroneous assertion that she remains an asylum
seeker. More significantly, the nature, extent and degree of the alleged consequences to the
reclaimer of summary eviction are nowhere set out and were not advanced in argument. All
this aspect of the claim amounts to is the mere assertion that even the threat of lawful
eviction in the reclaimer’s circumstances constitutes a breach of article 3. The hypothesis
Page 21 ⇓
21
upon which the 1999 Act proceeds is that once an asylum claim is refused, the individual
should leave the country. Where to do so would cause undue difficulty, measures are
available under section 4. There is a means of appeal available against refusal of section 4
support. Otherwise, there is available to an asylum seeker who maintains that eviction
would breach article 3 or article 8, the remedy of a judicial review challenging the notice to
quit intimated by the Secretary of State, which can be combined with the measure of interim
interdict against Serco.
[49] As to the article 8 claim, it is clear that there are steps available to the reclaimer to
have the proportionality of the measures taken assessed by an independent tribunal either in
the context of a section 4 appeal or as noted above in the context of judicial review. We do
not accept that the Lord Ordinary was in any way in error in his interpretation and
application of R(RN) v Lewisham LBC. The observations made by Lord Hodge in paras 62-66
of that case apply equally to a person in the position of the reclaimer, and in this regard the
case did not turn on any specialty of English housing law.
[50] We are conscious that the Scottish Human Rights Commission sought and were
given permission to intervene in the present case. However, it seems apparent that the
Commission did not appreciate the extent to which the issues in the case hinged on
questions of relevancy and specification rather than the arguments, on proportionality and
otherwise, which might have been made in an action for judicial review. Furthermore, the
arguments advanced sought to identify a distinction between how the scheme was designed
and how it operated in practice. This was not in fact an aspect of the reclaimer’s case. As
the Lord Ordinary noted “the object of the present litigation … is to challenge the lawfulness
of the regime working as intended.” Any case where there had been a breakdown of
procedure would require to be dealt with according to its own facts and circumstances.
Page 22 ⇓
22
[51] We should observe that we agree with the submission that the Lord Ordinary did fall
into error in concluding that the availability of an appeal against withdrawal of section 95
support constituted a procedural safeguard, since the right only applies where support is
withdrawn “before that support would otherwise have come to an end”. However, we are
satisfied that there remain sufficient procedural safeguards to enable the proportionality of
the measures involved to be assessed in appropriate proceedings (R(RN) v Lewisham).
A public body?
[52] The remaining issue relates to the question raised in the cross-appeal, namely
whether the Lord Ordinary erred in concluding that Serco should be classified as a public
body. We have reached the conclusion that this conclusion was incorrect, and that Serco
should not be so classified. The question of whether an entity is a public body, or exercises a
public function, is important in determining whether the acts of that entity engage the
European Convention on Human Rights and are thus responsible to the European Court of
Human Rights on behalf of the United Kingdom. At a domestic level, the question is
important because of the application of section 6(1) of the Human Rights Act 1998, which
provides that “It is unlawful for a public authority to act in a way which is incompatible
with a Convention right…”. Subsection (3) of that section provides that, for the purposes of
the section, the expression “public authority” includes “any person certain of whose
functions are functions of a public nature…”. The critical question is accordingly whether
Serco was a public authority or exercises functions of a public nature for the purposes of that
section.
[53] As parties recognised, there is no single test of universal application to be used in
deciding whether a function is a public one such that the body exercising it falls to be
Page 23 ⇓
23
classed as a public authority; that appears from the extensive discussion of the matter in
Aston Cantlow, supra. Nevertheless, a considerable degree of clarification of the law in this
area is found in the opinions of the majority of the House of Lords in YL v Birmingham City
Council, supra. That case concerned the activities of a private operator of a care home in
which it provided health and social care services under a contract with a local authority.
Most of the fees for those services were paid by the local authority. The operator of the
home sought to terminate the contract for the care of a particular individual and to remove
her from the home. It was held that in providing care and accommodation the operator of
the care home was not exercising a public function for the purposes of section 6(3) of the
1998 Act. A helpful statement of the approach to be followed is found in the opinion of
Lord Scott at paragraph 31:
“[I]t cannot be enough simply to compare the nature of the activities being carried
out at privately owned care homes with those carried out at local authority owned
care homes. It is necessary to look also at the reason why the person in question,
whether an individual or corporate, is carrying out those activities. A local authority
is doing so pursuant to public law obligations. A private person, including local
authority employees, is doing so pursuant to private law contractual obligations”.
[54] The fundamental distinction, on this basis, is therefore between the entity that is
charged with the public law responsibility, in that case a local authority, and the private
operator who contracts with that entity to provide the service. The latter person operates
according to private law obligations and responsibilities. The public law duty to provide
care remains that of the entity with public law responsibility, in that case the local authority.
In the present case it is the Home Secretary who is charged with the public law
responsibility for providing accommodation for asylum seekers. Serco, by contrast, is
merely subject to a private law contract with the Home Office to provide the necessary
services. The fact that those services are ultimately intended to fulfil a public law
Page 24 ⇓
24
responsibility is immaterial; they are still provided on a private law basis. Such services are
analogous to a wide range of functions that are regularly contracted out by government to
private providers, such as construction and maintenance work for government departments
and local authorities. Further examples include the manufacture of vehicles, aircraft and
munitions for government departments such as the Ministry of Defence; the latter analogy is
drawn specifically by Lord Neuberger in YL at paragraph 141.
[55] In the present case the function that would engage the responsibility of the United
Kingdom under the European Convention on Human Rights is the obligation of the Home
Secretary under section 95 of the Immigration and Asylum Act 1999 to provide or arrange
accommodation for asylum seekers. The fact that that obligation is discharged by the Home
Secretary’s arranging for asylum seekers to occupy property provided by a third party
under a contract for services does not make that third party answerable for the discharge of
the Home Secretary’s obligations. Under section 95 of the 1999 Act the obligation is to
provide support for asylum seekers, and that obligation remains incumbent on the Home
Secretary and does not pass to parties such as Serco who contract with the Home Secretary
to provide services for asylum seekers.
[56] In the event that an asylum claim is determined against the claimant, the scheme of
the Act is that the Home Secretary should provide written notice to quit to the asylum
seeker; that is provided in regulation 22 of the Asylum Support Regulations 2000. That
occurred in the present case. If a failed asylum seeker contends that the result of this is a
breach of their Convention rights they may challenge that notice to quit, or indeed the
decision of the Home Secretary which led to the issuing of that notice. Nevertheless, it is the
Home Secretary’s refusal of the asylum claim that results in the eviction and is the occasion
for the provider of accommodation, in this case Serco, to seek recovery of their property. In
Page 25 ⇓
25
any such case the asylum seeker’s complaint, in public law, is against the Home Secretary,
not against Serco. The state cannot absolve itself of responsibility for such public law duties
as the provision of accommodation to asylum seekers by delegating its responsibility to
private bodies. If arrangements are made with a private company to provide
accommodation, responsibility for the exercise of the public law duty is not delegated, but
remains with the Home Secretary.
[57] That is clear from YL, where Lord Neuberger at paragraph 141 states that even if the
actual provision of a service that a public authority is obliged to provide as a matter of
public law is delegated or subcontracted to a private provider, the actual provision of the
service by that provider is not converted from what would otherwise be a function of a
private nature into one of a public nature. The public authority, in the present case the
Home Secretary, remains answerable for the discharge of the duty. In the event of judicial
review designed to enforce an asylum seeker’s Convention rights, the claim would be made
against the Home Secretary, and not against the private provider. Furthermore, the
provision of accommodation to asylum seekers under a contract with the Home Office is not
in any way comparable to the exercise of a coercive function. It is rather a private contract
for the provision of a service where the public law responsibility remains that of the Home
Secretary.
Conclusion
[58] Accordingly, for all these reasons the reclaiming motion at the instance of the
reclaimer must fail, whereas the cross appeal at the instance of the third defender and
respondent must succeed.