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14 November, 2019
Ali (Iraq) v Serco Ltd  CSIH 54
Inner House confirms Serco’s actions were lawful in seeking to recover possession of property provided to failed asylum seekers and concluded that Serco was not acting as a hybrid public authority
The reclaimer is a failed asylum seeker, whose appeal rights became exhausted in November 2017. The reclaimer was provided with accommodation while her asylum claim was being determined. Nearly 6 months after the asylum claim was refused. the Secretary of State served notice that asylum support and accommodation would be withdrawn. The reclaimer was to quit her accommodation by 13 June 2018. Persons provided with asylum support accommodation are excluded from the protection against eviction without court order in terms of s.23 of the Rent (Scotland) Act 1984 (“1984 Act”). A form of support is available to failed asylum seekers in terms of s.4(2) of the Immigration and Asylum Act 1999 (“1999 Act”) if they meet certain criteria. The reclaimer argued that notwithstanding (i) her asylum claim had been refused, (ii) persons provided with asylum support accommodation were excluded from the terms of s.23 of the 1984 Act, and (iii) the availability of support in terms of s.4(2) of the 1999, it was unlawful for Serco to seek to recover possession of property without a court order.
The Court identified 4 key issues:
- Did the reclaimer have a right under common law preventing eviction without court order?
- Did the reclaimer have a right akin to a lease created by virtue of a jus quaesitum tertio preventing eviction without court order?
- Would eviction without a court order breach the reclaimer’s rights under Articles 3 or 8 of the ECHR?
- Was the Lord Ordinary correct to find that Serco were a ‘hybrid public authority’ for the purpose of the Human Rights Act 1998?
Issue 1 – A common law right?
The first issue had not been argued in front of the Lord Ordinary, but the Inner House considered its substance. The reclaimer accepted that she was excluded from the statutory protection against eviction without court order. However, the statute expressly preserved any existing common law rights. The reclaimer argued that there was a right at Scots common law that prevented eviction without court order. In Conway v Glasgow City Council, however, the only preserved common law right was said to be reasonable notice. There was a weight of Inner House authority against the contention that eviction of contractual occupiers (rather than leaseholders) without court order was per se unlawful at common law. The reclaimer’s occupancy was precarious from the outset. No court process was required at common law. Accordingly, the reclaimer’s argument was rejected (at  – ).
Issue 2 – A jus quaesitum tertio?
This argument was not advanced to the Lord Ordinary, but sought to argue that Home Secretary and Serco had agreed a contract to benefit the reclaimer, and the reclaimer could enforce this agreement. The effect was said to be that a right akin to a lease was created and thus eviction without court order would be unlawful. The Court decisively rejected this argument (at ). Crucially, the reclaimer was averred to be in a contractual relationship directly with Serco, and the reclaimer’s argument, if correct, would have directly contradicted the specific terms of that agreement.
Issue 3 – Article 3 or 8 breach?
The Court dismissed the case under Articles 3 and 8 as having no merit (at ). The threat of lawful eviction could not reach the minimum severity threshold of Article 3. The Court noted that support is available under s.4 of the 1999 Act for failed asylum seekers in certain situations. The refusal or withdrawal of s.4 support carries a right of appeal. The Court raised the possibility of challenging the Secretary of State’s decision to issue a statutory notice to quit by way of judicial review, combined with interim interdict. In respect of Article 8, there were various ways in which a failed asylum seeker could raise the question of proportionality without the necessity of an eviction action having to be raised against them. Lord Hodge’s observations in R(N) v Lewisham LBC were approved as being applicable to this context.
Issue 4 – Hybrid public authority
The Lord Ordinary had concluded that Serco were exercising “functions of a public nature” and were thus would have to comply with Convention rights. The Inner House disagreed (at ). Fundamentally, the Court held that the exercise of the public law function remains with the Secretary of State; Serco were exercising private law functions. The Secretary of State remains answerable for the public law duty to arrange for the provision of accommodation to asylum seekers. Serco were simply performing a service under contract. Accordingly the cross appeal was allowed (at ).
The Inner House rejected each of the reclaimer’s arguments. Neither Serco, nor the Home Secretary, acted unlawfully in any of the ways alleged. Moreover, Serco was not acting as a ‘hybrid public authority’.
Contrary to some commentary in the aftermath of the decision, the effect of this ruling was not that the Home Secretary can ‘outsource its statutory and international legal obligations’. Quite the reverse. As noted at , “the state cannot absolve itself of responsibility for such public law duties as the provision of accommodation to asylum seekers by delegating its responsibility to private bodies”.
Nor is it the case that the government can simply ‘contract out of the Human Rights Act’. Instead, as the Court noted, “responsibility for the exercise of the public law duty is not delegated, but remains with the Home Secretary”. What this means is that in this context a public law challenge is properly made against the Home Secretary, who decides whether support should be provided, and not against a private contractor.
The reality is, as the Court noted at , that when an asylum claim is refused the person is expected to leave the UK. If there are good reasons why a person simply cannot leave, then statutory support is available. Parliament decided to exclude those in asylum support accommodation from the statutory protection against eviction without court order that other “residential occupiers” have. In the circumstances, the Court was left with little option but to refuse the reclaiming motion.
Opinion of Inner House can be viewed here.
Ampersand’s Michael Way was instructed on behalf of the 1st and 2nd Respondent at Note of Argument stage in the reclaiming motion and in related interdict proceedings.