Lock-change evictions of unsuccessful asylum seekers lawful – Court of Session

26 November 2019 by Daniel McKaveney

Ali v Serco, Compass and the Secretary of State for the Home Department – read judgment.

Serco hit the headlines in July of last year when it introduced its controversial eviction practice of changing the locks of refused asylum seekers. In a judgment that refugee charities are describing as a worrying precedent, the Inner House of the Court of Session ruled that this practice is lawful.

Euan Lynch has also posted on this case, focussing on the question of whether Serco should be classified as a “public authority” under the HRA 1998 as the Outer House and the Inner House of the Court of Session reached different conclusions on this point.

Background

Serco is a company that is contracted by the government to provide accommodation and support for asylum seekers. In July 2018, it began a new practice of evicting asylum seekers who had been refused permission to stay in the UK by changing the locks on their accommodation. This is called the “Move On Protocol”, and does not involve any action through the courts.

The pursuer in this case, Ms Ali, made a claim for asylum that was dependant on an application made by her husband. The claim was refused in August 2016. Appeals to the First-tier Tribunal and then to the Upper Tribunal were rejected in 2017. They have exhausted any rights of appeal.

Whilst their application was being decided, Ms Ali and her husband had been provided with temporary accommodation by Serco. After the asylum claim was refused, a letter was sent by Serco in May 2018 informing the pursuer and her husband that their right to occupy the flat would terminate on 13 June 2018. It advised that if they did not leave the accommodation by this date, legal action might be taken via the courts in order to evict them. However, in July 2018 the pursuer was made aware of Serco’s “Move On Protocol”.

The pursuer claims that Serco must obtain a court order in order to evict her and that the Protocol is therefore unlawful in terms of section 6 of the Human Rights Act 1998 (the HRA). This makes it unlawful for a public authority to act incompatibly with a right under the European Convention on Human Rights (the Convention). It is alleged that Serco is a public authority for the purposes of the HRA, and that its “Move On Protocol” is incompatible with articles 3 (prohibition of degrading treatment) and 8 of the Convention (right to respect for private and family life). Claims were also made under housing law, but these will not be discussed.

The Outer House agreed with the pursuer’s contention that Serco is a public authority. However, it found that the Protocol did not infringe articles 3 and 8. The Inner House therefore heard the pursuer’s appeal.

Accommodation for Asylum seekers

Under section 95 of the Immigration and Asylum Act 1999, the Secretary of State may provide support for asylum seekers and their dependants who are, or are likely to become, destitute. A person is destitute if they do not have adequate accommodation or cannot meet their essential living needs. 

Although the wording of the legislation frames it as a choice that the Secretary of State can make, it is understood that this is a duty. This is because the Council Directive 2003/9/EC sets out minimum standards for receiving asylum seekers that States must comply with, which is implemented into UK domestic law by The Asylum Seekers (Reception Conditions) Regulations 2005. The Secretary of State therefore complies with this obligation by contracting Serco to provide accommodation.

The Secretary of State’s duty ends when a person stops being an asylum seeker. This happens when their claim has been determined. They are then given a notice to quit, informing them of when they must exit their accommodation. If unsuccessful in their claim, the person must in principle leave the country. If this is not possible as it would cause “undue difficulty”, the Secretary of State has the power to provide accommodation for unsuccessful asylum seekers under section 4 of the 1999 Act. A negative decision by the Secretary of State under this section can be appealed to a tribunal. Judicial review is also available to challenge the notice to quit on the grounds that it breaches Convention rights.

The pursuer in this case made an application under section 4 which was rejected. They are considering bringing a petition for judicial review.

The Convention rights

Before dealing with the question of whether Serco is a public authority under the HRA, the court considered the pursuer’s claims under article 3 and article 8 of the Convention.

It was alleged by the pursuer that the threat of eviction by changing the locks without a court order caused severe fear and alarm and affected their mental health, which amounted to degrading treatment and therefore breached Article 3.

For conduct to amount to a violation of Article 3, it must reach a minimum level of severity. This is normally understood as intense physical or mental suffering. 

In the current case, the court found that the conduct in question did not meet this threshold. It concluded that the pursuer had not adequately demonstrated the nature and degree of the consequences of eviction. The effects of the claims by the pursuer would mean that even the threat of lawful eviction of a person in the pursuer’s circumstances would be incompatible with article 3. There was therefore no infringement of article 3.

Article 8

Regarding the claim under Article 8, the pursuer claimed that the “Move On Protocol” was a disproportionate interference with these rights. She alleged that the appeal process was insufficient and did not prevent eviction. This was because there was no assessment of the eviction by an independent tribunal as Serco made the decision to evict her after being notified by the Secretary of State that it should not provide any further support. 

Any interference with the rights under article 8 must be proportionate.  Even if a person’s right to occupation under domestic law has ended, they are still entitled to have an independent tribunal assess the proportionality of their eviction (Manchester City Council v Pinnock [2011] 2 AC 104).

The court rejected the pursuer’s claim. In doing so, it considered the case of R(N) v Lewisham LBC [2015] AC 1259. This had assessed whether a public authority evicting someone without a court order when their obligation to provide accommodate ceased was a violation of article 8. The Court had held that where there were sufficient procedural safeguards, article 8 would not be violated by eviction without a court order. In that case, the proportionality of the decision could be assessed by a statutory appeal or in judicial review proceedings. 

In the present circumstances, the court concluded that there were sufficient recourses available that enabled the pursuer to have the proportionality of the actions assessed by an independent tribunal. An appeal could be made under section 4 of the 1999 Act, as the pursuer had done, or they could bring a petition for judicial review. It therefore considered that sufficient safeguards were in place and that there was no infringement of article 8.

The Court of Session concluded that no claim regarding the pursuer’s Convention rights could be made against Serco as they were not carrying out functions of a public nature. As mentioned above, Euan Lynch deals with the question of public authority.

Comment

The judgment is a blow for the protection of the human rights of asylum seekers.  In particular, the determination that Serco is not a public authority for the purposes of the HRA raises several concerns. 

The Scottish Human Rights Commission, which intervened in the appeal, criticised the decision, stating that “Governments should not be able to divest themselves of their human rights obligations by outsourcing the provision of public services”. The court considered that this was not the case, as it is the refusal of the claim for asylum by the Secretary of State that results in a person’s eviction, and this can be challenged. However, the act that is alleged to interfere with the Convention rights is the threatened eviction, which is carried out by Serco. It should be noted that it is now Mears that has the contract to provide accommodation.

It does not sit well that an agreement to provide accommodation for asylum seekers is seen as analogous to a contract for maintenance work or manufacturing vehicles. The former involves the implementation of the UK’s international obligations to uphold minimum standards of human rights, the latter does not. The Lord Ordinary seemed to recognise this distinction in the Outer House decision when ruling that Serco was a public authority, stating that “Serco is taking the place of central government in carrying out what in essence is a humanitarian function”. The Inner House, however, disagreed, and the judgment raises concerns more generally regarding the protection of people’s rights when the government contracts private companies to carry out work of this nature.

The decision is thought to affect around 300 asylum seekers in Glasgow alone, and concerns have been raised that this will exacerbate the already serious homelessness problem in Glasgow. It adds to the problems that asylum seekers already face when attempting to access their most basic rights, and will only increase the calls for a reform of the asylum system.