A test case on whether it is legal to remove asylum seekers from accommodation provided pending determination of their applications, after those applications have failed, by changing the locks without first obtaining a court order for their removal, has resulted in victory for the housing provider and the Home Secretary.

Lord Tyre in the Court of Session dismissed two actions against Serco Ltd, Compass SNI Ltd and the Home Secretary in which the pursuers sought declarator that they were entitled to be provided with accommodation while their applications were being determined, declarator that evicting them without a court order would be unlawful under statute and having regard to their rights under the European Convention on Human Rights, and interdict against their ejection or against the locks being changed.

The pursuer in the first case was Shakar Ali, whose husband had claimed asylum but whose appeal rights following refusal had been exhausted; further submissions had been held not to amount to a fresh claim, but he was said to be contemplating proceedings for judicial review of that decision. The second case was brought by Lana Rashidi, whose husband had also exhausted appeal rights against refusal of asylum but in respect of whom the First-tier Tribunal had held she had an outstanding claim for asylum in her own right and was eligible for support; in this case, the Home Secretary having since accepted that she was meantime entitled to accommodation, it was accepted that the first declarator was unnecessary.

It was argued for the pursuers that eviction without a court order would be unlawful (1) having regard to s 22 of the Rent (Scotland) Act 1984, as a breach of rights under ECHR articles 3 and 8, Serco being a "public authority" (which was disputed) and bound by the Convention; (2) because the petiers' occupancy rights flowed from an agreement that amounted to a lease at common law; and (3) as the occupancy agreement in question did not permit unilateral termination of occupation, and so long as asylum remained in dispute, it remained in force.

Lord Tyre ruled first of all that s 22 did not create any civil right in favour of a residential occupier. It contained a criminal offence of unlawful deprivation of occupation, but did not purport to determine what was or was not unlawful in this context. Section 23, which was not founded on, did create a new protection but did not extend to asylum seekers provided with accommodation under the Immigration and Asylum Act 1999.

The judge accepted that Serco was exercising a function of a public nature in providing accommodation to destitute people seeking asylum, in terms of its contract with the Home Office, as this was clearly a function which was governmental in nature. However as respects article 8 of the Convention, the statutory scheme for review of a decision to evict an asylum seeker whose entitlement to occupation had come to an end afforded "an adequate opportunity for the proportionality of eviction to be assessed by an independent tribunal". Failures in practice identified by the pursuers did not affect the lawfulness of the statutory regime.

No relevant case had been made out that the circumstances of either case were capable of amounting to degrading treatment amounting to a breach of the respective pursuers’ rights under article 3 of the Convention.

The common law case failed because the occupancy agreement contained no provision for payment of rent, one of the four cardinal elements of a lease. Instead there was a separate agreement between the Home Office and Serco under which Serco would provide free accommodation to those falling within the 1999 Act in return for a fee.

As respects the occupancy agreement, it clearly provided for service of notice specifying the time to quit and why the entitlement to accommodation had come to an end, and came with a statutory notice period that allowed time for the occupant to take further steps that might allow for prolongation of occupancy.

It followed that there was nothing in any of the pursuers' cases requiring proof before answer.

Click here to view Lord Tyre's opinion.