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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SHAKAR OMAR ALI AGAINST SERCO LIMITED AND OTHERS AND LANA RASHIDI AGAINST SERCO LIMITED AND ANOTHER [2019] ScotCS CSOH_34 (12 April 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_34.html
Cite as: 2019 Hous LR 30, [2019] CSOH 34, 2019 GWD 13-204, 2019 SLT 463, [2019] ScotCS CSOH_34
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OUTER HOUSE, COURT OF SESSION
A199/18
A191/18
[2019] CSOH 34
OPINION OF LORD TYRE
in the cause
SHAKAR OMAR ALI
Pursuer
against
(FIRST) SERCO LIMITED, (SECOND) COMPASS SNI LIMITED, and (THIRD) SECRETARY
OF STATE FOR THE HOME DEPARTMENT
Defenders
and in the cause
LANA RASHIDI
Pursuer
against
(FIRST) SERCO LIMITED and (SECOND) SECRETARY OF STATE FOR THE HOME
DEPARTMENT,
Defenders
Pursuers: Dailly (sol adv); Drummond Miller LLP
Defenders (Serco Limited and Compass SNI Limited); Connal QC, Byrne; Pinsent Masons LLP
Defender (Secretary of State for the Home Department); McIlvride QC, Gill; Morton Fraser LLP
12 April 2019
Introduction
[1] Serco Limited (to whom, along with its former sub-contractor Compass SNI Limited,
I shall refer as “Serco”) is a party to a contract with the Secretary of State for the Home
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Department, in terms of which it provides accommodation and support to asylum seekers
on the Secretary of State’s behalf. The principal issue that has been raised for determination
in these proceedings is whether it is unlawful for Serco to evict an asylum seeker whose
claim for asylum has been refused from his or her accommodation without first obtaining a
court order authorising it to do so. I was advised that the two cases with which this opinion
is concerned are regarded by all parties as representative of a larger number of cases in
which the same issue arises.
Factual background: Ms Shakar Ali
[2] Ms Ali is a Kurdish Iraqi national who avers that she is married to a Mr Aryan
Hameed. They currently reside together in a flat in Glasgow. On 5 March 2016 Mr Hameed
applied for asylum. Ms Ali, who had previously made a claim of her own for asylum,
withdrew it and became a dependent on Mr Hameed’s application. That application was
refused on 25 August 2016. An appeal to the First-tier Tribunal (“FTT”) was refused on
7 April 2017, and a further appeal to the Upper Tribunal was refused on 17 October 2017.
Mr Hameed became appeal rights exhausted on 2 November 2017, at which date neither he
nor Ms Ali had an extant claim for asylum. In the course of the hearing I was informed that
on 29 October 2018 further submissions were made on Mr Hameed’s behalf to the Secretary
of State, but that on 25 January 2019 those submissions were rejected on the ground that they
did not amount to a fresh claim. I was further informed that proceedings for judicial review
of that decision are in contemplation, and that an application for support under section 4 of
the Immigration and Asylum Act 1999 (“the 1999 Act”, discussed below) has been made and
refused.
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[3] Ms Ali and Mr Hameed took up occupancy of the flat in September 2017, in
accordance with an occupancy agreement entered into between Serco and Ms Ali on 6
September 2017. On 31 May 2018, Serco served notice addressed to Mr Hameed that their
right to occupy the flat was terminated as from 13 June 2018, warning them that if they did
not vacate the flat by that date, legal action might be taken through the courts to evict them.
Ms Ali avers, however, that on 29 July 2018, Serco announced 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. In a letter dated 1 August
2018 to Glasgow City Council, Serco’s group chief executive confirmed that Serco had
“developed a very precise set of protocols and procedures to cover lock-changes, called a
‘Move On Protocol’” which had been agreed in recent weeks with the Council.
Factual background: Ms Lana Rashidi
[4] Ms Rashidi is married to a Mr Rabar Razaie. She avers that they are both Kurdish
Iranian nationals. They arrived in the United Kingdom on 22 February 2017 and claimed
asylum. Ms Rashidi subsequently withdrew her application and became a dependant on
Mr Razaie’s application. That application was refused by the Secretary of State on 2 June
2017. An appeal to the FTT was refused on 26 July 2017, and a further appeal to the Upper
Tribunal was refused on 14 March 2018. Mr Razaie became appeal rights exhausted on
28 March 2018.
[5] Ms Rashidi and Mr Razaie took up occupation of a property in Glasgow in March
2018, in accordance with an occupancy agreement entered into between Serco and
Mr Razaie. On 23 April 2018, the Secretary of State informed Mr Razaie that as his appeal
rights were exhausted, a decision had been taken to discontinue his asylum support, and
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that he and Ms Rashidi were expected to leave the property by 6 May 2018. On 15 June
2018, Ms Rashidi made a second claim for asylum in her own name with Mr Razaie as a
dependant on it. On 22 June 2018 the Secretary of State advised her that she was not eligible
to claim asylum because she had previously made and withdrawn a claim. On 29 June 2018
the Secretary of State refused an application by the pursuer for asylum support; however, on
16 July 2018, the FTT decided that she had an outstanding claim for asylum and was eligible
for support under section 95 of the 1999 Act (discussed below). On 6 August 2018 the
Secretary of State informed Ms Rashidi by letter that he would provide her and her
dependants with accommodation and subsistence support while her asylum application was
pending or any subsequent appeal was outstanding. Mr Razaie and Ms Rashidi continue to
occupy the property.
[6] Ms Rashidi avers that on 27 May 2018 she suffered a miscarriage which she believes
happened because of “the stress and mental anguish caused by the constant threats of
eviction from [Serco]”. She further avers that she has been diagnosed as suffering from post-
traumatic stress disorder, with low mood and anxiety. She too makes reference in her
pleadings to a change of policy by Serco in relation to eviction without a court process,
following its adoption of the “Move On Protocol”.
Remedies sought by the pursuers
[7] In each of the two cases the pursuer concludes for the following remedies:
1. Declarator that she is entitled to be provided with accommodation by the
defenders under section 95 of the 1999 Act while her application for asylum is being
determined by the Secretary of State;
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2. Declarator that evicting her from the property she is occupying without a court
order would be unlawful, et separatim unlawful in terms of section 6 of the Human
Rights Act 1998 having regard to her rights under articles 3 and 8 of the European
Convention on Human Rights (“the Convention”);
3. Interdict and interim interdict against Serco from ejecting her from the property she
is occupying, or changing the locks, without a court order.
A conclusion in each case for declarator that eviction would breach the pursuer’s rights
under Article 1 of the First Protocol to the Convention was not insisted upon. It was also
conceded, in Ms Rashidi’s case only, that given the Secretary of State’s acceptance that she
was entitled to be provided with accommodation and support pending determination of her
current asylum application, declarator in terms of the first conclusion was unnecessary.
Statutory entitlement to accommodation of asylum seekers and former asylum seekers
Provision of accommodation to asylum seeker
[8] Section 95(1) of the 1999 Act empowers the Secretary of State 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. A person is destitute in this connection if he does not
have adequate accommodation or any means of obtaining it, or has adequate
accommodation or the means of obtaining it but cannot meet his other essential living needs.
“Asylum seeker” is defined in section 94(1) as a person who is not under 18 and has made a
claim for asylum which has been recorded by the Secretary of State but not yet determined.
In terms of section 94(3) and (4), a claim for asylum is “determined” at the end of a period
(to be prescribed) beginning on the date of notification of the Secretary of State’s decision or,
if the claimant has appealed, on the date when the appeal is disposed of, ie when it is no
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longer pending for the purposes of inter alia the Immigration Acts. The combined effect of
section 17 of the UK Borders Act 2007 and regulation 2 of the Asylum Support (Prescribed
Period following Appeal) Regulations 2007 is that the period prescribed for the purposes of
section 94 is (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);
or (b) where an appeal is timeously made, 21 days after the appeal has been finally
determined, withdrawn or abandoned.
[9] Although section 95 is drafted in permissive terms, it was common ground that the
power granted by it to the Secretary of State was converted into a duty incumbent upon him
by regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005, in order to
implement Council Directive 2003/9/EC which laid down minimum standards for reception
of asylum seekers. Under section 103(1) and (2) of the 1999 Act, a decision by the Secretary
of State that a person does not qualify for accommodation or support under section 95, or a
decision to stop providing accommodation or support before it would otherwise have come
to an end, may be appealed to the FTT. The FTT may require the Secretary of State to
reconsider the matter, or substitute its decision for the decision appealed against, or dismiss
the appeal. The FTT’s decision is final.
Provision of accommodation to former asylum seeker
[10] If a claim is “determined” (as defined above) without asylum having been granted,
the person in question ceases to be an asylum seeker as statutorily defined, and the Secretary
of State’s obligation in terms of section 95 comes to an end. However, section 4 of the 1999
Act empowers the Secretary of State to provide, or arrange for the provision of, facilities for
the accommodation of a person whose claim for asylum has been rejected, and for his or her
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dependants. The criteria to be used by the Secretary of State in deciding whether or not to
provide or arrange, or to continue to provide or arrange, accommodation in terms of
section 4 are contained in regulation 3 of the Immigration and Asylum (Provision of
Accommodation to Failed Asylum-Seekers) Regulations 2005, and are as follows:
(i) the person appears to the Secretary of State to be destitute; and
(ii) one or more of the following conditions (in regulation 3(2)) is satisfied:
(a) he is taking all reasonable steps to leave the UK or place himself in a position to
leave;
(b) he is unable to leave the UK because of a physical impediment to travel or some
other medical reason;
(c) he is unable to leave the UK because there is currently no viable return route
available;
(d) he has made an application for judicial review of a decision in relation to his
asylum claim; or
(e) the provision of accommodation is necessary for the purpose of avoiding a
breach of his Convention rights.
If the Secretary of State decides not to provide, or not to continue to provide,
accommodation for a person under section 4, the same right of appeal to the FTT is available
under section 103(2A) of the 1999 Act as is available for an appeal against a section 95
decision. Again the FTT’s decision is final.
Notice to quit
[11] Where an asylum seeker who, in pursuance of section 95 of the 1999 Act, has been
provided with a tenancy or licence to occupy accommodation has his claim determined, or
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ceases to be destitute, he may be given notice to quit in accordance with the provisions of
regulation 22 of the Asylum Support Regulations 2000. The period of notice specified by
regulation 22 is seven days. I was informed that in practice a period of notice of 21 days is
used. The notice given to the occupant will draw his or her attention to the possibility of an
application under section 4. The aim, I was advised, was for an application under section 4,
if made promptly, to be determined within the 21-day period of the notice to quit. There is
no statutory period of notice to quit to be given to a person who has been provided with
accommodation under section 4.
Eviction without due process of law
[12] Section 23 of the Rent (Scotland) Act 1984 contains a prohibition of recovery of
possession, otherwise than by proceedings in the FTT, of premises let as a dwelling where
the tenancy has come to an end but the occupier continues to reside in the premises.
However, section 23A lists a number of circumstances in which the protection conferred by
section 23 does not apply. One of these (section 23A(5A)) is a tenancy or right of occupancy
granted in order to provide accommodation under either section 4 or section 95 of the 1999
Act. It is also to be noted that section 23(5) states that “Nothing in this section shall be taken
to affect any rule of law prohibiting the securing of possession otherwise than by due
process of law”.
The occupancy agreement
[13] A document entitled “Occupancy Agreement” between Serco and Ms Ali signed on
6 September 2017 was produced. An agreement in identical terms, mutatis mutandis, albeit
with some glitches in paragraph numbering, between Serco and Mr Razaie signed on
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16 March (presumably 2018) was also produced. Nothing turns on whether those
agreements were entered into by one of the pursuers or by her husband. The preamble to
each 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, on a
temporary basis, on behalf of UKVI (ie UK Visas and Immigration), whilst his/her asylum
application is being assessed. The commencement date of the agreement is specified.
Serco’s obligations include (i) ensuring at the commencement and throughout the period of
occupancy that the property is structurally sound, in a wind and watertight condition, and
in a reasonable state of repair and maintenance; (ii) providing a day to day housing
management service to resolve any issues arising; and (iii) providing furniture and utensils
for use within the property. 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.”
Argument for the pursuers
[14] On behalf of each of the pursuers it was submitted that her eviction by Serco from
the premises that she occupied would be unlawful without a court order. The argument
was founded upon section 22 rather than section 23 of the Rent (Scotland) Act 1984.
Section 22 creates a criminal offence, and hence a civil wrong, where a person unlawfully
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deprives the residential occupier of any premises of his occupation of the premises or any
part thereof. “Residential occupier” is defined by section 22(5), in relation to any premises,
as a person occupying them as a residence, whether under a contract or by virtue of any
enactment or rule of law giving him/her the right to remain in occupation or restricting the
right of any other person to recover possession.
[15] Eviction without a court order would be unlawful, in terms of section 22, for three
separate reasons. In the first place, it would constitute a breach of the occupant’s rights
under ECHR articles 3 and 8. Serco was a “public authority” within section 6(3) of the
Human Rights Act 1998, being a person certain of whose functions were functions of a
public nature. Reference was made to the observations of Lord Nicholls in Aston Cantlow
at paragraphs 165 and 168. The factors in the present case which indicated that Serco was
exercising functions of a public nature were:
The Secretary of State had procured it to provide support and accommodation on his
behalf and in order to meet the UK’s international and domestic obligations to
asylum seekers;
Serco was publicly funded to provide support and accommodation to asylum
seekers, in accordance with the Secretary of State’s directions;
The 1999 Act had introduced a “dispersal” procedure for asylum seekers, whose
support and accommodation had previously been a function of local authorities;
The asylum seeker had no choice: he/she had to accept the accommodation offered
by Serco or face destitution.
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There was no material difference between Serco’s function in providing accommodation and
other circumstances in which a private company had been held or admitted to be exercising
functions of a public nature, such as Campbell v Scottish Ministers [2017] CSOH 35 concerning
the transportation of prisoners.
[16] As a person exercising functions of a public nature, Serco could not act in a way that
was incompatible with the pursuers’ Convention rights. The policy and practice of evicting
occupants by changing locks without a court order, and thus placing the occupants in a state
of fear and alarm and affecting their mental health, amounted to degrading treatment
contrary to article 3. Separately, the “Move On Protocol” was incompatible with their
article 8 rights as it was a disproportionate interference with their rights to respect of private
and family life and their home. In principle, any person at risk of losing his or her home
should be able to have the proportionality of their eviction determined by an independent
tribunal, even where the domestic law right to occupation had come to an end: Manchester
upon the state to provide a mechanism for assessment by a court of the proportionality of
eviction; the applicant should not be required to initiate an appeal process. In any event, the
rights of appeal to the FTT conferred by section 103 of the 1999 Act were insufficient because
the decision to evict was made by Serco upon notification from the Secretary of State that no
further support or accommodation should be provided, without analysis by an independent
tribunal of such eviction. In practice such appeals did not prevent eviction.
[17] In the second place, eviction without a court order was unlawful because the
pursuers’ occupancy rights flowed from an agreement that amounted to a lease in terms of
Scots common law. The four cardinal elements of a lease identified in Gray v University of
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1992 SC 12, the Lord Justice-Clerk (Ross) cited a definition of a lease by Rankine which made
clear that the consideration for a lease need not be money alone. In the circumstances of the
present case, consideration for exclusive possession of the property was constituted by the
existence of an active asylum application to the Secretary of State which gave rise to an
obligation under section 95 to provide support and accordingly to a payment to Serco by the
Secretary of State. By this means Serco received a payment in exchange for the occupation
by the pursuers and their respective husbands of their homes. It was also noteworthy that
certain provisions of primary legislation contemplated asylum seekers being provided with
tenancies: examples were paragraph 82 of Schedule 14 to the 1999 Act, making consequential
amendments to the Housing (Scotland) Act 1987, and regulation 22 of the Asylum Support
Regulations 2000 (mentioned above) where reference is made to a person who has “a
tenancy or licence to occupy accommodation”.
[18] In the third place, clause 4.1 of the Occupancy Agreement did not permit unilateral
termination of the pursuers’ occupation of their respective homes. Serco was not in a
position to know whether a person’s asylum claim had been finally “determined”, given the
range of possibilities for challenge or submission of a fresh application. Errors could easily
be made. So long as the matter remained in dispute, the occupancy agreement remained in
force. The only lawful means of bringing it to an end was by an order of the court.
Argument for the Secretary of State
[19] On behalf of the Secretary of State it was submitted that the pursuers’ actions were
irrelevant in law and should be dismissed. As regards the first conclusion in each case, ie for
declarator that the pursuer was entitled to be provided with accommodation under
section 95 while her application for asylum was being determined, there was no live issue in
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relation to Ms Rashidi as the Secretary of State had made clear that he accepted that he had
an obligation to provide accommodation under section 95 pending determination of her
extant claim., and was in fact providing such accommodation. Ms Ali’s case for such
declarator was irrelevant because she did not aver that either she or her husband had an
extant and undetermined asylum claim. Intimation of an intention to seek judicial review of
refusal of accommodation and support did not bring her within section 95.
[20] As regards the second conclusion, ie for declarator that eviction without a court
order would be unlawful, the pursuers’ case was based upon a misreading of the provisions
of the Rent (Scotland) Act 1984. Section 22, which created an offence, applied only to
unlawful deprivation of possession: that begged the question of whether the apprehended
actions by Serco would be unlawful. The requirement that court proceedings be brought in
certain circumstances was contained in section 23, not section 22 of the Act, and the whole of
section 23 was disapplied by section 23A(5A) to provision of accommodation to asylum
seekers in terms of the 1999 Act. There remained no provision of the 1984 Act that would
make the actions unlawful.
[21] The pursuers’ argument at common law was also irrelevant because the four cardinal
elements of a lease were not all present. There was no rent payable in terms of the
occupancy agreement. Fees paid by the Secretary of State to Serco in respect of the provision
of accommodation to asylum seekers were a matter between those parties alone. They were
of no concern to the pursuers and did not indicate consensus in idem as between the occupier
and Serco or the owner. Reference by way of analogy was made to Mann v Houston 1957
SLT 89, Lord President Clyde at 92. The situation was not analogous to the payment of
housing benefit on behalf of a tenant: in that case funding was provided to meet the tenant’s
obligation, whereas here there was no obligation.
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[22] Nor had the pursuers pled a relevant case that eviction without a court order would
breach their Convention rights. Firstly, Serco was not a public authority within the
description in section 6(3) of the Human Rights Act 1998. The following principles should
be taken from YL v Birmingham City Council (above): (i) a distinction had to be made
between the function of a public authority in making arrangements in order to fulfil its
statutory duty and that of a private company in providing care and accommodation under
contract with the authority on a commercial basis rather than by subsidy from public funds;
and (ii) the provision of care and accommodation by the private company, as opposed to its
regulation and supervision, was not an inherently public function. Although the pursuers
had public law rights against the Secretary of State which were unaffected by the existence
of the contract between the Secretary of State and Serco, they did not have Convention rights
against Serco. The case of Campbell v Scottish Ministers was distinguishable because it
concerned the exercise of coercive public powers which had to be viewed as public
functions. If, as was submitted, Serco was not to be regarded as a public authority, it was
not subject to Convention duties. Recovery of possession of property by a private sector
FJM v United Kingdom, ECtHR, 29 November 2018.
[23] Even if Serco did fall to be regarded as a public authority, it would not be a breach of
either of the pursuers’ Convention rights for Serco to change the locks on their property or
otherwise evict them without having first obtained a court order. As regards article 8 of the
Convention, it was accepted, on the basis of the Strasbourg jurisprudence and subsequent
decisions of the Supreme Court, that a person at risk of being dispossessed of his home by a
public authority should in principle have the right to have the question of proportionality
determined by an independent tribunal making its own assessment of the facts, even if the
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person’s right of occupation under domestic law has come to an end. That requirement was
met here by the possibility of appeal to the FTT against refusal or termination of occupancy
in terms of section 95, and/or refusal to provide accommodation in terms of section 4. The
latter expressly obliged the Secretary of State to provide accommodation for a person who
was destitute and where the provision of accommodation was necessary to avoid breaching
his or her Convention rights. It was not necessary to provide for a court process to take
pursuer had pled circumstances amounting to treatment capable of constituting a breach of
article 3 of the Convention.
Argument for Serco
[24] Senior counsel for Serco sought to draw a distinction between immigration cases on
the one hand and housing cases on the other. These were immigration cases, and there was
a coherent system in place that protected the human rights of asylum seekers. The relevant
legislative provisions were not primarily concerned with the provision of housing but rather
with the provision of temporary accommodation pending the outcome of an application for
asylum. Where such an application failed, the assumption was that the failed asylum seeker
would leave the UK. Section 4 of the 1999 Act was concerned primarily with providing
temporary accommodation to persons who, for one of the reasons listed, was unable to
leave, but it also covered persons whose Convention rights would be breached if
accommodation was not provided. Rights of appeal to an independent tribunal were made
available. Parliament had further provided that removal of asylum seekers from temporary
accommodation was exempt from any requirement to take court proceedings to obtain
possession. Parliament had thus created a seamless structure in which all material decisions
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were taken by the Secretary of State and in which the Convention rights of the asylum
seeker, or former asylum seeker, could be protected. There was accordingly no requirement
for another process before removal was allowed.
[25] Serco was not a public authority and accordingly the Human Rights Act 1998 had no
application to it. Any challenge required to be made to the Secretary of State’s decision that
the right to accommodation had come to an end. It would be curious if a failed asylum
seeker who had exhausted his or her remedies against the Secretary of State had a further
right to resist removal by Serco without a court order. The leading authority, YL v
Birmingham City Council, supported the defenders’ position. The McDonald/FJM case was
not in point because it was concerned with rights under housing law, not immigration law.
[26] The pursuers’ argument that they were tenants protected by section 22 of the Rent
(Scotland) Act 1984 was also unfounded. As no rent was paid by or on behalf of the asylum
seeker, there was no lease. Asylum seekers provided with accommodation in terms of the
1999 Act were expressly excluded from statutory protection.
Decision
[26] The issue is whether the pursuers have identified a basis in law for their contention
that their eviction, including within that expression the changing of locks, by Serco without
a court order would be unlawful. The pursuers have founded their case upon section 22 of
the 1984 Act which, as I have noted, creates a criminal offence of unlawfully depriving a
residential occupier of his occupation of the premises. I am not persuaded that this
provision created any new civil right in favour of the residential occupier. Section 22(4)
states expressly that the section is not to be taken to prejudice any liability or remedy to
which a person guilty of an offence under section 22 may be subject in civil proceedings.
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One is thus directed elsewhere to identify a basis upon which the person unlawfully
deprived of possession may seek a remedy in the civil courts. That is unsurprising when
one bears in mind that the offence consists of unlawful deprivation of occupation; the section
does not purport to determine what is or is not unlawful in this context.
[27] Nor is section 23 of any direct assistance to the pursuers. That section created a new
protection for occupiers of property let as a dwelling otherwise than as a statutorily
protected tenancy or a furnished letting from eviction without proceedings in the FTT. As
already noted, however, that protection was not extended to asylum seekers provided with
accommodation under either section 95 or section 4 of the 1999 Act. Once again the occupier
is left with whatever rights he or she has at common law, and in this regard I respectfully
agree with the view expressed by Sheriff GH Gordon QC in Conway v City of Glasgow Council
1999 HousLR 20 at paragraph 6-58 that the disapplication of section 23 to, inter alia, asylum
seekers did not take away the rights preserved by section 23(5). What common law or other
rights, then (if any), do asylum seekers provided with accommodation under section 95 or
section 4 have not to be evicted by Serco without a court order?
Breach of Convention rights
[28] I begin with the pursuers’ contention that such eviction would constitute a breach of
the occupier’s human rights in terms of article 3 and/or article 8 of the Convention. Such a
breach could only occur if Serco is to be regarded as a “public authority” in this connection,
ie if Serco is exercising functions of a public nature.
[29] In Aston Cantlow (above), Lord Nicholls of Birkenhead observed at paragraphs 10
and 12:
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“10. [The Human Rights Act 1998] does not amplify what the expression ‘public’
and its counterpart ‘private’ mean in this context. But, here also, given the statutory
context already mentioned and the repetition of the description ‘public’, essentially
the contrast being drawn is between functions of a governmental nature and
functions, or acts, which are not of that nature. I stress, however, that this is no more
than a useful guide. The phrase used in the Act is public function, not governmental
function.
…
12. What, then, is the touchstone to be used in deciding whether a function is public
for this purpose? Clearly there is no single test of universal application. There
cannot be, given the diverse nature of governmental functions and the variety of
means by which these functions are discharged today. Factors to be taken into
account include the extent to which in carrying out the relevant function the body is
publicly funded, or is exercising statutory powers, or is taking the place of central
government or local authorities, or is providing a public service.”
At paragraph 49, Lord Hope of Craighead regarded the phrase “public function” in this
context as “clearly linked to the functions and powers, whether centralised or distributed, of
government”. In similar vein, Lord Rodger of Earlsferry at paragraphs 160 and 163
expressed the view that the essential characteristic of a public authority is that it carries out,
either generally or on the relevant occasion, the kind of public function of government that
would engage the responsibility of the UK before the Strasbourg organs.
[30] All of those observations were referred to with approval by members of the majority
in YL v Birmingham City Council. At paragraph 91, Lord Mance considered that Lord
Nicholls’s view supported a broad application of section 6(3)(b) of the 1998 Act, but also a
factor-based approach. At paragraph 159, Lord Neuberger of Abbotsbury derived assistance
from the emphasis placed by Lord Hope and Lord Rodger, and also Lord Hobhouse of
Woodborough, on functions which are “governmental in nature”. On the other hand,
Lord Neuberger acknowledged at paragraph 167 that the fact that some statutory power is
attached to a function may not always determine that it is “of a public nature”.
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[31] Applying these observations to the facts of the present case, and adopting a factor-
based approach as advocated by, among others, Lord Nicholls in Aston Cantlow and Lord
Mance in YL, I have come to the conclusion that when providing accommodation to asylum
seekers and former asylum seekers in terms of its contract with the Home Office, Serco is
exercising a function of a public nature. The implementation by the UK of its international
obligations to receive and provide essential services to destitute people seeking asylum is
clearly, in my view, a function which is governmental in nature. The same would be true if
and to the extent that the UK undertook the task of providing such services to destitute
asylum seekers as a matter of national policy rather than in implementation of international
obligations. Equally, it seems to me that provision of accommodation and essential services
to destitute asylum seekers and their dependants is not a function analogous to the
provision of care and accommodation by a residential care home in pursuance of a contract
with a public authority. It is not in any sense a commercial activity. There is no element of
choice or competition so far as the occupants are concerned. Rather, adopting Lord
Nicholls’s words, Serco is taking the place of central government in carrying out what in
essence is a humanitarian function. The fact that Serco is being paid under a commercial
contract and might have to compete for renewal of its contract does not, in my opinion,
outweigh the significance that must be attached to the context in which Serco acts, namely
the implementation of a function that must, by one means or another, be exercised by a
national government.
[32] Another way of approaching the matter would be under reference to the distinction
drawn in freedom of information legislation, mentioned by Lord Mance in YL at paragraph
106, between a person who “appears… to exercise functions of a public nature” and a person
who “is providing under a contract made with a public authority any service whose
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provision is a function of that authority”. Provision of accommodation to destitute asylum
seekers or former asylum seekers seems to me to fall within the former category and
therefore within the scope of section 6(3)(b) of the 1998 Act. It has more in common with the
exercise of coercive functions, as in Campbell v Scottish Ministers (above) than with the mere
contracting out of a service by a public authority.
[33] Having so found, I turn to the question whether Serco has breached the Convention
rights of the pursuers by putting in place a system in which they may be evicted from the
accommodation that they occupy, including by means of changing locks, without the
authority of a court order. In my opinion it has not.
[34] I deal firstly with article 8, which prohibits interference by a public authority with
the exercise of a person’s right to respect for his private and family life and his home, unless
the interference is in accordance with the law and necessary in a democratic society inter alia
for the protection of the rights and freedoms of others. In Manchester City Council v Pinnock
(above) at paragraph 45, Lord Neuberger distilled the following propositions from the
Strasbourg case law:
(a) Any person at risk of being dispossessed of his home at the suit of a local
authority should in principle have the right to raise the question of the
proportionality of the measure, and to have it determined by an independent
tribunal in the light of article 8, even if his right of occupation under domestic law
has come to an end.
(b) A judicial procedure which is limited to addressing the proportionality of the
measure through the medium of traditional judicial review is inadequate as it is not
appropriate for resolving sensitive factual issues.
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(c) Where the measure includes proceedings involving more than one stage, it is the
proceedings as a whole which must be considered in order to see if article 8 has been
complied with.
(d) If the court concludes that it would be disproportionate to evict a person from his
home notwithstanding the fact that he has no domestic right to remain there, it
would be unlawful to evict him so long as the conclusion obtains.
Lord Neuberger also noted, however, that it seemed that the European court had franked
the view that it would only be in exceptional cases that article 8 proportionality would even
arguably give a right to continued possession where the applicant had no right under
domestic law to remain.
[35] In R(N) v Lewisham London Borough Council (above), the applicant sought judicial
review of a housing authority’s decision to terminate her temporary accommodation as a
homeless person, on the ground that recovery of possession without a court order would be
unlawful. The majority of the Supreme Court decided the matter on the basis that the
temporary accommodation provided was not a “dwelling” for the purposes of the relevant
legislation, and so the provisions of that legislation requiring a court order did not apply.
However the Court went on to address the question whether a public authority which
evicted a person when its statutory duty to provide interim accommodation ceased without
first obtaining a court order for possession violated the person’s article 8 rights. In a
judgment with which the majority of the Court agreed, Lord Hodge confirmed (paragraph
65) that it was only in very exceptional cases that an applicant would succeed in raising an
arguable case of lack of proportionality where he had no right under domestic law to remain
in possession, and observed (paragraph 66), under reference to European authorities, that it
was for the occupier to raise the question of proportionality and that the court could deal
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with such an argument summarily unless it was seriously arguable. At paragraph 71,
Lord Hodge held, addressing the circumstances of the case before the Court, that any issue
of proportionality could be raised either in a statutory appeal against an adverse decision by
the housing authority, or in proceedings for judicial review of a decision to evict. For these
reasons, he concluded (paragraph 74) that there were procedures by which an independent
tribunal could assess the proportionality of the decision to repossess the accommodation
and determine relevant factual disputes. There were therefore sufficient procedural
safeguards to satisfy the applicant’s article 8 rights without the need for a court order
authorising eviction.
[36] None of the cases to which I have referred was concerned with provision of
temporary accommodation to asylum seekers or former asylum seekers. The legal
principles enunciated are, however, in my view, stated in sufficiently broad terms to apply
to the provision of temporary accommodation in such circumstances. The question is
whether the statutory scheme for review of a decision to evict an asylum seeker or former
asylum seeker whose entitlement to occupation of temporary accommodation has come to
an end affords an adequate opportunity for the proportionality of eviction to be assessed by
an independent tribunal. In my opinion it does. As I have noted, section 103(1) of the 1999
Act provides a right of appeal to the FTT against a decision by the Secretary of State to
refuse or to stop providing support (including accommodation) under section 95. In
accordance with the authorities to which I have referred, section 103(1) must be interpreted
as empowering the FTT, which is of course an independent tribunal, to address any issue of
proportionality that is raised by the appellant. Similarly, section 103(2A) provides a right of
appeal to the FTT against a decision of the Secretary of State not to provide or continue to
provide accommodation under section 4. It will be recalled that one of the circumstances in
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which the Secretary of State must provide accommodation under section 4 to a failed asylum
seeker is where such provision is necessary for purpose of avoiding a breach of that person’s
Convention rights. Clearly, therefore, in such an appeal the FTT will require to address any
issue of proportionality raised by the appellant. The jurisdiction of the FTT is full and
includes investigation of factual issues. I therefore hold that the availability of a right of
appeal to the FTT against an adverse decision under either section 95 or section 4 is
sufficient to enable any arguable issue of proportionality to be raised before and determined
by an independent tribunal, and that, on the authority of the case law to which I have
referred, there is no need for additional proceedings to obtain a court order authorising
eviction.
[37] A number of arguments were presented as to why the right of appeal to the FTT was
inadequate to satisfy the pursuers’ article 8 rights. It was said that those rights were
concerned with asylum issues rather than housing issues and that the FTT could not
therefore consider questions of proportionality of eviction. I reject that submission: it is clear
from the terms of section 103 that it is concerned with appeals against refusal of temporary
accommodation as opposed to refusal of asylum more generally. For the reasons I have
given, the section must be construed, were there to be any doubt, as enabling the FTT to
consider proportionality, if raised by the appellant as an issue, in order to ensure that the
appellant’s Convention rights would not be breached by eviction. It was also submitted that
the onus of assessing the proportionality of eviction at the end of the section 95 process
should rest upon the Secretary of State, and that a court process was needed to enable that
onus to be discharged. I reject that contention as being contrary to the authority of R(N) v
Lewisham, and the authorities cited by Lord Hodge at paragraph 66 of his judgment.
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[38] It was further contended that the Move On Protocol purported to entitle Serco to
change locks without any assessment of proportionality; that the expedited eviction process
was in practice detached from the legislation; that the exercise of appeal rights against an
adverse decision under section 4 did not in practice stop eviction and lock changing from
occurring; that Serco was not always informed of the exercise by a failed asylum seeker of
the right of appeal against an adverse decision under section 4; and that the statutory
procedure was so complicated that the only practicable means of making a proportionality
assessment was in a sheriff court action for recovery of possession. In addressing these
arguments it is important to draw a distinction between, on the one hand, the operation of
the statutory regime as it was intended by Parliament to work and, on the other hand, the
problems that may arise if and when the statutory regime is not properly adhered to. The
object of the present litigation, as I understand it, is to challenge the lawfulness of the regime
working as intended. It is not, therefore, relevant in these proceedings to consider the
situation of a person where, for example, there is a breakdown of communication between
the Secretary of State and Serco regarding that person’s asylum status, or where a person
who is in the process of exercising a right of appeal or, a fortiori, a person who has been
granted refugee status, is wrongfully threatened with eviction or a lock change. Such cases
would require to be dealt with on their own facts, and remedies such as interim interdict
might have to be sought. But I am concerned here with the question whether the existence
of a system whereby failed asylum seekers may be evicted or have the locks on their
properties changed at a time when they have no extant right of appeal is of itself unlawful.
That question cannot be determined by reference to cases in which things have gone wrong
as a result of failures by Serco or by the Secretary of State’s officials to comply fully with the
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statutory safeguards. For all of the foregoing reasons the pursuers’ argument based upon
article 8 must be rejected.
[39] I can deal rather more briefly with the pursuers’ argument based upon breach of
their rights under article 3 of the Convention. That article provides that no-one shall be
subjected to torture or to inhuman or degrading treatment or punishment. It was submitted
on behalf of the pursuers that the Move On Protocol, including in particular its threat of
changing locks, was a sword of Damocles which hung perpetually over the pursuers,
amounting to degrading treatment that affected their mental health. In the case of
Ms Rashidi, it was argued, proof before answer was required of her averment that she had
miscarried due to “the extreme stress caused by the constant threat of eviction”. I note
however that only one letter from Serco (dated 9 July 2018) threatening eviction was lodged
or referred to, and that that letter was superseded by the Secretary of State’s confirmation on
6 August 2018 that he would provide Ms Rashidi and her dependants with accommodation
and subsistence support while her asylum application was pending.
of Lords held that a decision by the Secretary of State to refuse support under section 95 of
the 1999 Act to persons who were destitute but who were found not to have claimed asylum
as soon as was reasonably practicable after their arrival in the UK was capable of engaging
article 3 if the consequences were so severe as to amount to inhuman or degrading
treatment. At paragraph 54, Lord Hope of Craighead emphasised, under reference to
minimum level of severity if it is to fall within the scope of the expression “inhuman or
degrading treatment or punishment”. In Pretty, the Court said that
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“…where treatment humiliates or debases and individual showing a lack of respect
for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or
inferiority capable of breaking an individual’s moral and physical resistance, it may
be characterised as degrading and …fall within the prohibition of article 3”.
[41] I was referred to no authority for the proposition that a threat of ex hypothesi lawful
termination of possession of temporary accommodation is capable of constituting degrading
treatment of the minimum level of severity necessary to amount to a breach of article 3. The
difficulty with the pursuers’ proposition is that it could apply not only to failed asylum
seekers but to any person lawfully threatened with eviction from his or her current place of
residence. One must bear in mind that the Secretary of State has a statutory duty under
section 4 of the 1999 Act to provide accommodation for a failed asylum seeker and his or her
dependants if this is necessary to avoid a breach of the person’s Convention rights, and it is
also relevant to Ms Rashidi’s case to recall that the Secretary of State’s letter dated 23 April
2018 to Mr Razaie intimating discontinuance of support under section 95 drew attention to
the possibility of claiming support under section 4. The position might be different with
regard to persistent threats of unlawful eviction (which might also constitute a criminal
offence under section 22 of the 1984 Act), but that is not the situation with which this
opinion is concerned. In my opinion no relevant case has been made out that the
circumstances of either of the present cases are capable of amounting to a breach of the
respective pursuers’ rights under article 3 of the Convention.
Breach of rights of tenant under a lease
[42] I turn next to the pursuers’ argument that their removal from the accommodation
which they respectively occupy would be unlawful without a court order because the
occupancy agreement amounts to a lease at common law. I have narrated (at paragraph 17
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above) the basis upon which the pursuers contend that the four cardinal elements of a lease
are present in relation to their occupancy of their accommodation. I am not persuaded that
the circumstances averred by the pursuers can be construed as the payment of rent. The
definition of a lease in Rankine, Leases (3rd ed, page 1) cited with approval by the court in
Brador Properties Ltd v British Telecommunications plc (above, at page 19) is as follows:
“A lease or tack is a contract of location (letting to hire) by which one person grants
and another accepts certain uses, current or definitive, or the entire control, of lands
or other heritages for a period or periods, definite or indefinite, or even in perpetuity,
in consideration of the delivery by the grantee of money or commodities or both,
periodically or in lump or in both of these ways.”
[43] In the present case the grantee of the right of temporary occupancy pays nothing for
that grant, whether in the form of money or other consideration. The Occupancy Agreement
makes no provision for consideration of any kind. 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.
Instead there is a separate contract between the Home Office and Serco in terms of which
Serco agrees to make available temporary accommodation, free of charge, to asylum seekers
falling within section 95 and to failed asylum seekers to whom accommodation is to be
provided under section 4, and the Home Office agrees to remunerate Serco for carrying out
that service. It is not suggested that this contract imposes any obligation upon an individual
occupant of accommodation, and in particular an obligation to make any payment.
Accordingly, in my opinion, one of the four cardinal elements of a lease, namely the rent, is
absent. Not only is there no consensus in idem regarding rent (which was the point at issue in
Gray v University of Edinburgh): there is no obligation to pay rent at all. It follows that the
pursuers as temporary occupants of the accommodation made available by Serco do not
acquire the status of tenants and acquire no right at common law to resist removal without a
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court order. I do not consider that any doubt is cast upon this conclusion by the fact that
there are occasional references in asylum and immigration legislation to tenancies or tenants.
At best for the pursuers these references suggest that Parliament envisaged that there might
be situations in which asylum seekers would be granted tenancies, but they do not create an
inference that any situation in which an asylum seeker is provided with temporary
accommodation will amount in law to a tenancy.
Contractual right under the agreement
[44] I address lastly the pursuers’ submission that the Occupancy Agreement does not
permit unilateral termination of the pursuers’ occupation of their respective homes. The
argument, as I understood it, was that determination of the asylum seeker’s claim did not of
itself confer any entitlement on Serco to evict him or her from their accommodation,
including changing the locks. This was because at that time it could not be said that the
occupier would have to leave: there could, for example, be an appeal, or a fresh claim, or an
application under section 4, or an application for judicial review. Unilateral action by Serco
in the meantime would be unlawful.
[45] In my view this argument too is unsound. As the terms of the Occupancy
Agreement make clear, termination of the agreement under clause 4.1 is subject to service of
a written notice on the occupant specifying the date and time of, and the reason for, the
termination. The notice period is 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. In this context it is worth repeating two points
already made: firstly, that the onus of initiating any further action rests upon the asylum
seeker and not on the Secretary of State, and, secondly, that I am concerned in this opinion
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with cases in which the statutory procedure is correctly executed by the Secretary of State’s
officials and by Serco, and not with situations in which errors are made resulting in
remedies being sought according to the circumstances of the particular case.
Disposal
[46] I am not persuaded that there is anything in either of the pursuers’ cases requiring
proof before answer. On the contrary I am satisfied that neither of the pursuers has made
out a relevant case for any of the orders sought. I shall therefore accede to the defenders’
motions in each action to sustain their pleas to relevancy and to grant decree of dismissal.