The Inner House of the Court of Session upheld a decision of the Lord Ordinary that eviction without a court order authorising it was not unlawful under the common law nor under articles 3 and 8 of the European Convention on Human Rights (ECHR).

‘Move On Protocol’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lord Malcolm, heard that the appellant, Kurdish Iraqi national Shakar Ali, had made an asylum claim, which was dependant on a claim made by her husband.

But their application 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 the currency of their asylum claims, 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 appellant and her husband had been provided with temporary accommodation for which they paid no rent.

The accommodation had been provided on behalf of the Home Secretary by the first respondent Serco and its subsidiary the second respondent Compass SNI, under a contract between Serco and the Secretary of State.

After the appellant’s asylum claim had been rejected and appeal rights 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 concession support would be continued to 13 June 2018, 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. 

But thereafter Serco adopted a new policy of changing locks - a so-called “Move On Protocol” - and, without any court process, evicting asylum seekers whom it considered to have no continuing entitlement to be provided with accommodation. 

‘Unlawful eviction’

The appellant raised an action against Serco Ltd, its former sub-contractor Compass SNI Ltd and the Home Secretary, seeking declarator that she was entitled to be provided with accommodation under section 95 of the 1999 Act, which places an obligation on the Secretary of State to provide support for asylum seekers, while her asylum application is being determined.

She also sought declarator that evicting her without a court order would be “unlawful” et separatim unlawful in terms of section 6 of the Human Rights Act 1998, having regard to article 3 ECHR, which prohibits “inhuman or degrading treatment or punishment” and article 8 ECHR, which provides the right to respect for one’s “private and family life”; and interdict and interdict ad interim to prevent such eviction.

It was argued that eviction without a court order would be unlawful having regard to section 22 of the Rent (Scotland) Act 1984, a breach of rights under articles 3 and 8 ECHR, Serco being a “public authority” and bound by the European Convention; because the petitioners’ occupancy rights flowed from an occupancy agreement that amounted to a lease at common law; and as the agreement in question did not permit unilateral termination of occupation, and so long as asylum remained in dispute, it remained in force.

Despite accepting the proposition that Serco was a “public authority” for the purposes of section 6 of the Human Rights Act 1998 because it acting in place of central government, carrying out a ‘humanitarian function”, the Lord Ordinary dismissed the appellant’s arguments, following which the appellant reclaimed.

On behalf of the appellant, it was argued that the judge erred in all matters save for the decision that Serco was acting as a “public authority”. 

In a written intervention, the Scottish Human Right Commission also submitted 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.

‘No merit’

Refusing the appeal, the court observed that the appellant’s occupation of the property had been “precarious” from the outset.

Delivering the opinion of the court, the Lord Justice Clerk said: “It was submitted, and not disputed, that the reclaimer would continue to retain whatever common law rights would attach to her circumstances… 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. The Lord Ordinary was correct to conclude that therefore one of the four cardinal elements of a lease was absent.

“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.

“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 respondents were entitled to proceed to summary ejection from the property. That does not require court procedure.”

The appeal judges further held that the appellant’s case based on article 3 and article 8 ECHR had “no merit”, adding that the Lord Ordinary’s conclusion that Serco was a “public authority” was “incorrect”.

Lady Dorrian added: “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 responsibility is immaterial; they are still provided on a private law basis.

“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.”