Serco’s Evictions of Asylum Seekers in the Scottish Courts: A Question of Public Authorities in the Human Rights Act 1998

26 November 2019 by Euan Lynch

Ali (Iraq) v Serco Ltd [2019] CSIH 54 
 

The Inner House of the Court of Session has ruled that Serco Limited acted lawfully when evicting a failed asylum seeker from temporary accommodation in Glasgow without first obtaining a court order. This is the same conclusion that was drawn by the Outer House of the Court of Session in April.  Daniel McKaveney has posted on the main points in this judgement here.

Whilst each judgment reached the same end result, one striking difference between the two is the reasoning that the Lord Ordinary and the Lord Justice Clerk deployed to answer the question of whether Serco should be classified as a “public authority” under section 6 of the Human Rights Act 1998 (“the HRA 1998”).  

The persuasiveness and significance of each courts’ reasoning will be considered below.  

Background 

Serco is a private company that provided temporary accommodation to asylum seekers in Glasgow on behalf of the Secretary of State for the Home Department. They provided this accommodation under the terms of a contract which was agreed between the parties, stemming from the Home Secretary’s obligations in section 95 of the Immigration and Asylum Act 1999 (“the 1999 Act”).  

The facts of this case are set out in Danel’s post. Briefly, following the rejection of Mrs Ali’s asylum claim, the Home Secretary served a written notice to quit on 22 May 2018. On 31 May 2018, Serco served an eviction notice on Ms Ali and her husband. The notice advised them that they had to vacate the property by 13 June 2018, otherwise legal action would be taken against them. 

Thereafter, on 29 July 2018, Serco began to implement the “move on protocol” – a new policy of changing locks and evicting asylum seekers without any court process. This applied to asylum seekers, such as Ms Ali, whom Serco considered to have no continuing entitlement to be provided with accommodation. 

The Govan Law Centre subsequently initiated legal proceedings against Serco and the Home Secretary in August 2018. 

Outer House Decision – Ali (Iraq) v Serco [2019] CSOH 34 

The pursuers (Ms Ali and Ms Rashidi) submitted that their eviction without a court order was unlawful in terms of the Rent (Scotland) Act 1984 because, among other things, it breached their Article 3 and Article 8 rights under the European Convention on Human Rights (“the Convention”). 

To determine whether the pursuers’ Convention rights were breached in the first place, the Lord Ordinary had to answer the logically prior question – that is, of course, whether Serco can be classified as a “public authority” under the HRA 1998.  

A “public authority” is defined in section 6(3) of the HRA 1998 as “any person certain of whose functions are functions of a public nature” [emphasis added]. In applying this definition to Serco’s function, the Lord Ordinary adopted a “factor-based approach” [para 32] which was advocated by Lord Nicholls in Aston Cantlow v Wallbank and by Lord Mance in YL v Birmingham City Council. The factors mentioned in these cases included, among other things, whether the entity was: 

• exercising functions of a governmental nature; 
• exercising a statutory power;  
• taking the place of central government or local authorities; or 
• providing a public service. 

On balance, the Lord Ordinary concluded that the commercial arrangement between Serco and the Home Secretary did not outweigh the fact that Serco was essentially “taking the place of central government in carrying out what in essence [was] a humanitarian function”. Serco was therefore “exercising a function of a public nature” and should be classified as a “public authority” under the HRA 1998 [para 32]. 

Inner House Decision – Ali (Iraq) v Serco Ltd [2019] CSIH 54 

The Lord Justice Clerk agreed with the Lord Ordinary that there was no “single test of universal application” which can be applied to the question of whether a function is public in nature [para 53]. However, like the Lord Ordinary, she also noted that some judicial clarification existed in this area of law in cases such as YL and Aston Cantlow. 

Citing Lord Scott in YL, the Lord Justice Clerk argued that for the purposes of section 6(3) of the HRA 1998 the “fundamental distinction” is between the entity charged with the public law responsibility and the private operator who contracts with that entity to provide the service [para 54]. 

That public law responsibility rested with the Home Secretary who was under an obligation to provide accommodation to asylum seekers in section 95 of the 1999 Act. It was this obligation which engaged the responsibility of the UK under the Convention. By contrast, Serco was subject to private law obligations and responsibilities which stemmed from the commercial contract agreed between the parties. The Lord Ordinary’s conclusion was therefore incorrect as it could not be said that Serco was exercising functions of a “public nature”. 

In any event, it was only after the Home Secretary served written notice to quit upon an asylum seeker that Serco would seek to recover their property. In this sense it could be said that it was the Home Secretary’s actions which resulted in an asylum seeker’s eviction, not Serco’s.  

In such a case, any complaint in public law would be against the Home Secretary. Indeed, any asylum seeker seeking to protect their Convention rights through judicial review proceedings is tilting against the Home Secretary and not Serco. This is because, as a general principle, “the state cannot absolve itself of responsibility for such public law duties” by contracting out to private bodies [para 56]. 

Thus, the public law responsibility always remained with the Home Secretary; this was never delegated to Serco. 

Which Reasoning is the Most Persuasive?  

Firstly, the Lord Ordinary’s factor-based approach is arguably more convincing than the Lord Justice Clerk’s reliance on what he called the “fundamental distinction” (see above). The former, for example, seems much more balanced as it drew out several of the relevant factors from YL and Aston whereas the latter relied heavily on a single paragraph found in YL.  

Secondly, the analogies which were drawn by the Lord Justice Clerk between the provision of accommodation to asylum seekers and other services are somewhat questionable [see para 54]. These included analogies to other functions which were regularly contracted out by government to private contractors such as construction and maintenance work. These services, like Serco’s, were said to be provided on a purely private law basis. It did not matter in this case that Serco’s services were intended to fulfil a public law responsibility. 

By contrast, the Lord Ordinary placed great significance on Serco’s public law functions. He concluded that Serco was actually “taking the place” of central government as they were exercising a function which must be exercised by a national government.  

Arguably, the Lord Ordinary’s position is more tenable than the Lord Justice Clerk’s. It is difficult to see, for example, how the provision of services relating to construction, maintenance and manufacturing are analogous to providing accommodation to asylum seekers. This is because the latter is, as argued by the Lord Ordinary, a “humanitarian function” which will engage Convention rights in almost every case. Can the same really be said for the provision of maintenance on behalf of the government? 

Finally, it should be noted that the Lord Justice Clerk did not rule that the Home Secretary contracted out of the HRA 1998 under its arrangement with Serco as some critics suggest. Indeed, where an asylum seeker’s claim has been refused, a complaint in public law will still exist against the Home Secretary. This is because it is the Home Secretary who remains answerable for discharging their public law duty to provide asylum seekers with accommodation. After all, it is the Home Secretary that is responsible for protecting asylum seekers’ Convention rights in the UK – not Serco. 

Conclusion 

As there is no universal test of application in this area of law, it is somewhat unsurprising that each court adopted different methods of analysis in determining whether Serco should be classified as a “public authority”.  

However, given the increase in the privatisation of public services in recent years, the muddled application of this area of law is concerning. Indeed, the different approaches taken by the Lord Ordinary and the Lord Justice Clerk clearly highlight some of the difficulties that judges face in any given case. It is therefore equally as difficult to conclude which method of analysis is more persuasive than the other. 

This is a conclusion that the UK Supreme Court will likely make on appeal, hopefully providing judges with greater clarity in this area of law in the future. 

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