Scotland’s highest court, the Court of Session, has found the controversial eviction practice of changing the locks of refused asylum seekers unlawful.
Serco is a company contracted by the State to provide accommodation to asylum seekers. In July 2018 in implemented a ‘Move On Protocol’ which involved evicting asylum seekers who had been refused permission to stay in the UK by changing the locks on their accommodation.
The woman at the centre of the case was Ms Ali, who made a claim for asylum that was dependant on an application made by her husband. The claim was refused in August 2016 and all appeals were rejected.
Ms Ali received a notice to quit from the Home Secretary on 22 May 2018. This was followed up with an eviction notice from Serco on 31 May 2018 which stated their right to occupy the flat would terminate on 13 June 2018 and, if they failed to leave, Serco would take legal action via the courts to evict them. When they did not leave the flat, Serco implemented the ‘Move On Protocol’ which had come into effect on 29 July 2018.
Before the Outer House, Ms Ali’s legal team alleged that Serco hadnot acted in accordance with section 6 of the Human Rights Act 1998 (‘HRA’) which outlines that Serco must obtain a court order in order to evict an individual. They alleged that Serco was a public authority for the purposes of the HRA, and that its ‘Move On Protocol’ was incompatible with Articles 3 (prohibition of degrading treatment) and 8 of the Convention (right to respect for private and family life).
The Outer House agreed that Serco was a public authority. However, it found that the Protocol did not infringe Articles 3 and 8. The Inner House therefore heard Ms Ali’s appeal.
Ms Ali’s legal team alleged that changing Ms Ali’s locks without a court order caused severe fear and alarm and affected their mental health, which amounted to degrading treatment and therefore breach 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 Ms. Ali’s legal team had not adequately demonstrated the nature and degree of the consequences of eviction. The effects of the claims would mean that even the threat of lawful eviction of a person in Ms. Ali’s circumstances would be incompatible with Article 3. Hence, the Court found no infringement of Article 3.
Regarding the claim under Article 8, it was argued that the Protocol was a disproportionate interference with these rights. They 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 – it remained within the realm of Serco’s powers.
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  2 AC 104).
The Court, while considering the case of R(N) v Lewisham LBC  AC 1259, held that there were sufficient recourses available that enabled Ms. Ali 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 Ms. Ali had done, or she could have brought a petition for judicial review. The court, therefore, found no infringement of Article 8.
Ultimately, the Court of Session concluded that no claim regarding Ms. Ali’s Convention rights could be made against Serco as they were not carrying out functions of a public nature. It was of the view that public law responsibility lay with the Home Secretary who was under obligation to house asylum seekers. It held that Serco was subject to private law obligations under the commercial contract. Serco could only seek recovery of the property once the Home Secretary had served a notice to quit on the asylum seeker, therefore it was not Serco’s actions that resulted in the eviction.
Click here for the decision.