Asylum seekers’ legal challenge to housing provider’s ‘unlawful’ lock-changing protocol fails

In a test case, a judge in the Court of Session dismissed the actions brought by Kurdish Iraqi national Shakar Ali and Kurdish Iranian national Lana Rashidi against Serco Ltd, its former sub-contractor Compass SNI Ltd and the Home Secretary.

‘Move On Protocol’

Lord Tyre heard that the pursuers were seeking declarator that they were entitled to be provided with accommodation while their asylum applications were being determined, declarator that evicting them without a court order would be unlawful under statute and having regard to their rights under articles 3 and 8 of the European Convention on Human Rights, and interdict against their ejection or against the locks being changed.

Ms Ali and her husband took up occupancy of a flat in Glasgow in September 2017 in accordance with an occupancy agreement entered into with Serco, but the company served notice 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 averred that thereafter, on 29 July 2018, Serco announced a new policy of changing locks - called a “Move On Protocol” - and, without any court process, evicting asylum seekers whom it considered to have no continuing entitlement to be provided with accommodation. 

Ms Ali was dependent on her husband’s asylum application, but his claim was refused and his appeal rights following refusal were exhausted in November 2017, with further submissions rejected as not amounting to a fresh claim, although he was said to be contemplating proceedings for judicial review of that decision. 

Ms Rashidi and her husband Rabat Rezaie took up occupancy of their property in Glasgow in March 2018 in accordance with an occupancy agreement with Serco, but after Mr Rezaie’s application - upon which Ms Rashidi was dependent - was refused and his appeal rights were exhausted, the Home Office informed the couple that they were expected to leave the property by 6 May 2018.

On behalf of the pursuers it was argued that eviction without a court order would be unlawful  having regard to section 22 of the Rent (Scotland) Act 1984, as a breach of rights under ECHR articles 3 and 8, Serco being a “public authority” and bound by the 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.

‘No human rights breach’

However, the judge was not persuaded that there was anything in either of the pursuers’ cases requiring proof before answer and ruled that the pursuers had failed to make out a relevant case for any of the orders sought.

In a written opinion, Lord Tyre said: “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.”

Section 23, which was not founded on, did create 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, but that protection did not extend to asylum seekers provided with accommodation under the Immigration and Asylum Act 1999.

Dealing with the human rights case, the judge held that Serco, when providing accommodation to asylum seekers and former asylum seekers in terms of its contract with the Home Office, was “exercising a function of a public nature”, as the provision of essential services to destitute people seeking asylum was clearly a function which was “governmental in nature”. 

However, in relation to 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, the statutory scheme for review of a decision to evict an asylum seeker or former asylum seeker whose entitlement to occupation of temporary accommodation had come to an end afforded an “adequate opportunity for the proportionality of eviction to be assessed by an independent tribunal”. 

Failures by Serco or Home Office officials to comply with the statutory safeguards did not affect the lawfulness of the statutory regime.

‘No relevant case’

Lord Tyre further held that no relevant case had been made out that the circumstances of either case were capable of amounting to a breach of the respective pursuers’ rights under article 3 of the European Convention, which provides that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The claim that that the pursuers’ removal from the accommodation would be unlawful without a court order because the occupancy agreement amounted to a lease at common law also failed, because the occupancy agreement contained no provision for payment of rent, one of the four cardinal elements of a lease. 

“Instead,” the judge explained, “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.

He added: “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 court order.”

As to the pursuers’ submission 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, the judge considered that argument to be “unsound”.

The agreement made clear that termination was subject to service of a written notice specifying the date and time of, and the reason for, entitlement to accommodation coming to an end. 

Lord Tyre said: “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.”