Supreme Court Rejects Appeal in Serco Lock Change Evictions Case – But What Effect Has the Human Rights Challenge Already Had?

8 April 2020 by Euan Lynch

Introduction 

Serco is a private company that was contracted by the UK Home Office between 2012 and 2019 to provide accommodation to asylum seekers living in Glasgow. In July 2018, Serco began to implement the “move on protocol” – a new policy of changing locks and evicting asylum seekers without a court order if they were no longer eligible for asylum support. This put around 300 asylum seekers – who had no right to work or who had no right to homeless assistance – at risk of eviction and homelessness in Glasgow without any court process. 

In response to this, the Stop Lock Change Evictions Coalition (“the Coalition”) was formed by various organisations, charities and lawyers who all united for one common purpose – to protect asylum seekers’ human rights, particularly in relation to housing.  

The primary means of doing this has been in the courts. Indeed, just one month after the lock change eviction policy was announced the Govan Law Centre had already initiated legal proceedings against Serco and the Home Secretary in the Court of Session. The main argument in the case – Ali (Iraq) v Serco Ltd [2019] CSIH 54 – was that it was unlawful for Serco to evict asylum seekers without first obtaining a court order in terms of the Rent (Scotland) Act 1984. This was because, among other things, it breached their Article 3 and Article 8 rights under the European Convention on Human Rights (“the Convention”). That argument, however, was unsuccessful in both the Outer House and the Inner House on appeal (see the Blog’s coverage of the case here). 

Another important aspect of the case was the question as to whether Serco should be properly classified as a public authority under section 6(3) of the Human Rights Act 1998. The Outer House answered this question in the affirmative, but the Inner House – whilst reaching the same end-result as the Outer House – answered it in the negative. This question is an important one as it goes to the heart of recent concerns over the lack of oversight and accountability of private companies, such as Serco, that carry out services which are public in nature (see the Blog’s coverage of this aspect of the judgment here). 

After the Inner House found against the Govan Law Centre, they applied for permission to appeal to the UK Supreme Court (“UKSC”). In light of this, the Sheriff Principal discharged hearings in four test cases in March. These were subsequently deferred to a new court date.  

Yesterday, however, the UKSC announced that it was refusing permission to appeal in Ali (Iraq) v Serco Ltd. This is somewhat disappointing as the Inner House’s judgment has wide implications for the protection of human rights in public services, particularly when they are carried out by private entities. Not only that, but there also remains a lack of clarity in this area of law which would have benefitted from being considered and clarified by the UKSC. 

Despite the negative outcome of the appeal, the Coalition’s legal challenge has nevertheless had a significant impact on the protection of asylum seekers’ rights. Evidence of this can be found in a new report – A Site of Resistance – An Evaluation of the Stop Lock Change Evictions Coalition (“the Report”) – published in February and commissioned by the Scottish Refugee Council, Just Right Scotland, and Shelter Scotland. Such evidence includes the positive impact of the Coalition’s legal, public policy and operational response as well as their campaigns and media strategy. This illustrates how, more broadly, a coherent and collaborative human rights response can be effective in protecting the rights of vulnerable individuals. 

However, before delving into to the substantive content contained in the Report, it is important to first consider the legal framework underpinning the lock change eviction policy. 

The Intersectional Legal Framework  

There are four areas of law and policy which are at play when asylum seekers are threatened with a lock change eviction. These are: 

• Asylum and Immigration Law (Reserved to Westminster); 
• Asylum Support Regulations (Reserved to Westminster); 

• Housing Law (Devolved to the Scottish Government); 
• Community Care law (Devolved to the Scottish Government). 

See page 9 of the Report for more information on these areas of law and how they interact with one another. 

Underpinning all of this is, of course, human rights law. In particular, the right to respect for private and family life, home and correspondence which is protected by Article 8 of the Convention. The Coalition argue that Serco’s lock change eviction policy is a grave interference with this right, citing McCann v UK. In this case, the European Court of Human Rights (“ECtHR”) stated that the “loss of an individual’s home” is the most “extreme form of interference” with Article 8 [para 50]. 

The legal framework surrounding lock change evictions is therefore intersectional in nature. This means that many individuals and organisations with different specialisms are engaged, including those in immigration law, housing law, asylum housing and support, and refugee integration. Such a multifaceted issue requires a multifaceted response. Arguably, this is why the Coalition has been able to take effective action as its members – including, among others, the Scottish Refugee Council, Shelter Scotland, the Govan Law Centre, and the Legal Services Agency – span all of these sectors. 

The Coalition’s Work 

The Report notes that the Coalition’s response came in two phases: the quieter phase and the vocal, public-facing phase.  

The quieter phase quickly began after Serco announced their lock change policy in July 2018. The Coalition immediately started hosting legal surgeries, for example, which were coordinated by the Scottish Refugee Council. These helped around 170 individuals between August 2018 and August 2019. As well as legal surgeries, the Coalition also challenged Serco’s policy in the Scottish courts (see above). Such pressure, as well as growing media scrutiny, forced Serco to temporarily halt any planned evictions. 

In June 2019, however, Serco announced that it was going to resume lock change evictions. They advised that they would only give asylum seekers 7 days’ notice and that they would be serving up to 30 notices per week. As a result, the vocal, public-facing phase began. 

This started in the courts, where the Coalition sought interim interdicts on behalf of affected asylum seekers. However, in almost every case Serco opposed them. This “resulted in lengthy court hearings, contrary to normal practice where interim interdicts are considered”. Despite this, however, the Coalition was able to secure 159 interim interdicts, halting the planned evictions until a decision was reached by the Court of Session (see page 16). 

As well as this, the Coalition’s campaigns and media strategy also grew in importance during the second phase. Indeed, there were protests outside of Glasgow City Council’s headquarters as well as demonstrations outside of the Court of Session when decisions were due on cases. These were widely reported in the media which, in turn, increased public awareness of the issue. This also helped secure political support from lead politicians in both Westminster and Holyrood (see page 19). 

The Impact of the Coalition’s Work 

A “central element” of the Coalition’s work has been to obtain interim interdicts for as many affected asylum seekers as possible. These have been extremely important as they have granted asylum seekers time – time that has prevented eviction and which has allowed many of them to engage properly with their lawyers, get back onto asylum support and, in some cases, become recognised as refugees. Evidence in the Report, for example, shows that this extra time has allowed 10 people to be recognised as refugees and at least 36 individuals to be put back onto the asylum support system. In practice, this has decreased the number of asylum seekers sleeping rough on the streets of Glasgow. 

Another significant impact of the Coalition’s response has been to increase awareness of how the current asylum accommodation system is flawed. Firstly, asylum seekers have become much more aware of their rights and how to access and invoke them. This has been largely due to the Coalition’s decision to frame its response around housing rights, which has enabled the discourse around lock changes to move beyond the remit of asylum. Consequently, important questions have been raised concerning access to justice and people’s ability, regardless of their socio-economic status, to enforce their human rights. 

Secondly, the Coalition’s efforts have made the general public much more aware and supportive of asylum seekers’ rights. The Report, for example, highlights that this “broader and more vocal public support” has also been a result of the Coalition’s decision to frame its legal and operational response around housing rights instead of asylum and asylum support law (see page 24). Equally, the Scottish Government has recently recognised the Coalition’s credibility and the ongoing need for its work by granting them a fund to deliver a specialist service for individuals who are at risk of eviction and destitution. 

Lastly, the Coalition’s work has been illustrative of how effective a collaborative human rights response can be. This is particularly true in relation to overcoming the inherent inequality of arms which exist in human rights challenges against governments and large private companies. The latter, for example, will almost always have much greater access to financial, and therefore legal, resources than any one individual or human rights organisation. 

The Coalition, however, has been able to overcome this financial hurdle by “banding together as a sector”. As a result, they have been able to take “effective legal action” and hold Serco and the Home Secretary to account in the courts – notwithstanding the fact that the outcome of such action has been negative. It has nevertheless been “effective” as it has led Serco to halt lock change evictions in the past, for example between August 2018 and August 2019, protecting many asylum seekers from homelessness as a result (see page 29). 

Without the Coalition’s efforts to challenge Serco in the courts, it is therefore clear that many asylum seekers would have been vulnerable to Serco’s hostile policy with little or perhaps no means of protecting themselves. This is why, despite the negative outcome of the appeal to the UKSC, their work has been hugely significant for the protection of asylum seekers’ rights. 

The Coalition’s 10-Point Plan 

As well as documenting the impact of the Coalition’s work, the Report also recommends a “10-point plan” in order to end lock change evictions and destitution. These have been proposed as the Coalition believes that there is a fundamental need to “reform the asylum and asylum support system to end asylum destitution”. 

The (main) recommendations contained in the Report propose that the: 

i) UK Government: 

• must stop using destitution a policy tool; 
• must grant temporary protection to people who face barriers to return which are beyond their control; and  
• must restore people seeking asylum the right to work. 

ii) Home Office: 

• must place a requirement on all accommodation providers to never conduct summary lock change evictions.  

iii) Scottish Government: 

• must amend housing legislation to ensure that all lock changes are unlawful; and  
• must uphold rights in housing, health, social care, anti-poverty and human trafficking exploitation in its forthcoming strategy with the Convention of Scottish Local Authorities (“COSLA”). 

iv) Glasgow City Council: 

• must introduce a locally designed end of asylum process safety net in Glasgow. 

v) Mears Group (who now provide accommodation on behalf of the Home Office in Scotland): 

• must introduce a policy on how they will deal with failed asylum seekers. This must include a commitment to seek a court order to effect an eviction and not to evict by changing locks.  

See page 4 of the Report for all 10 of its recommendations.  

Conclusion 

The Coalition’s Report shows us how effective a collaborative human rights challenge can be for the protection of vulnerable individuals. One perfect example of this can be shown by the 159 interim interdicts that have been secured by the Coalition. These have given affected asylum seekers the time needed to pursue new avenues in their immigration cases.  

Aside from that, the Coalition’s work has been significant in increasing public awareness and support for asylum seekers’ human rights, particularly in relation to housing. Moreover, the Report’s “10-point plan” has highlighted the inadequacies of the current asylum and asylum support system in the UK and how these should be rectified. It is yet to be seen, however, if any of the interested parties will follow these recommendations.  

It is also yet to be seen whether this is the end of the Coalition’s legal battle. Indeed, the Govan Law Centre announced yesterday that it was considering what further steps, if any, they could take in light of the UKSC’s decision to refuse the appeal in Ali (Iraq) v Serco Ltd. Perhaps this is therefore not the end, but only just the beginning, of the Coalition’s plight to end lock change evictions in Scotland. 

(Note that the Home Office has also recently committed to suspending all evictions and terminations of asylum support for 3 months as a result of the Covid-19 pandemic, meaning that lock change evictions will not be carried out during this time)