Govan Law Centre takes aim at Serco’s proposed summary eviction of up to 300 asylum seekers in Glasgow

Mike Dailly

GLC will also explore the potential for individual just satisfaction claims for unlawful eviction under section 8 of the Human Rights Act 1998 against Serco/Home Office.

Principal solicitor and solicitor advocate Mike Dailly said: “Scots common law has long since prohibited eviction without due process of law against residential occupiers.

“In Scotland, it is generally necessary to obtain a decree for ejection from the court as opposed to taking the law into you own hands – known as summary eviction or eviction brevi manu – which is generally a criminal offence and a civil wrong.”

Serco has announced its intention to evict asylum seekers, and their families, in Glasgow by giving a brief period of written notice that they will change the locks to a person’s home.

GLC believes this proposed course of action appears to be unlawful and is fraught with a number of significant legal problems which are summarised below.

Glasgow asylum seekers occupy properties by virtue of a contractual occupancy agreement with Serco. They fall within the definition of a “residential occupier” in terms of section 22(5) of the Rent (Scotland) Act 1984. It is a statutory criminal offence to undertake acts likely to interfere with the peace or comfort of a residential occupier which will likely cause them to give up a right of occupation (section 22(2), 1984 Act).

The act of serving written notice that the locks of a home will be changed appears to be a criminal offence. It should be noted that section 22 is a standalone statutory provision, and while the protection afforded by section 23 of the 1984 Act is excluded for asylum seekers by virtue of section 23A, there is absolutely no doubt that section 22 applies to asylum seekers as it does to any other residential occupier.

It is a separate statutory criminal offence in terms of section 22(1) of the Rent (Scotland) Act 1984 to unlawfully deprive, or to attempt to deprive, a residential occupier of any premises of his or her occupation. Scots common law is unaffected by the 1984 Act (see section 23(5)).

Can Serco unilaterally terminate an asylum seeker’s occupancy agreement? Serco may purport to do so, however clause 4.1 of their agreement states: “This agreement shall terminate upon the determination of the Occupant’s asylum claim, subject to service of written notice in terms of 4.2 hereof”. The problem Serco has is asylum claims are subject to rights of appeal, judicial review, and indeed fresh claims based upon a material change of fact.

If an asylum claim is appealed or renewed clause 4.1 cannot apply – nor can Serco be certain it does apply – and any change of locks would clearly be unlawful. It should also be noted clause 4.2 makes no provision for the period of written notice, opening up scope for a separate contractual interpretation challenge based upon Scots common law and relevant case law.

The occupancy agreement of asylum seekers in Glasgow may well meet the basic requirements for a lease at Scots common law. If so, eviction can only take place following a valid notice to quit and where the court has granted decree for ejection. In Govan Law Centre’s leading common law unlawful eviction case of Conway v GCC 2001 SLT 1472 (Note), 1999 SCLR 248, a hostel occupier who shared a room was unlawfully evicted when she was not given reasonable notice at common law.

She would have been able to qualify as a common law tenant if she had exclusive possession of at least a room. Glasgow asylum seekers generally have exclusive possession of an entire flat. A consideration for the accommodation is paid to Serco by the Home Office for the occupier’s stay, in a similar way that housing benefit is paid to a landlord for a tenant who meets the housing benefit means testing criteria.