Glasgow based asylum seekers challenging their eviction from accommodation following the refusal of their claims have lost their appeal before the Inner House of the Court of Session.
In a test action for declarator and interdict brought by Shakar Ali, Lord Justice Clerk Lady Dorrian, Lord Drummond Young and Lord Malcolm upheld the decision of Lord Tyre at first instance (click here for report) that the pursuer was not covered by protections in the Rent (Scotland) Act 1984 or at common law – and further found for Serco by reversing Lord Tyre's decision that Serco was covered by the Human Rights Act 1998 as it was exercising a function of a public nature.
About 60 court orders are currently in force preventing Serco evicting asylum seekers in similar cases, pending the Inner House ruling.
In the test case, before the Inner House Ms Ali departed from her averment that she had made a fresh asylum claim, but argued that she retained certain common law rights: her occupancy was under contract, and summary ejection was not available. The Lord Ordinary erred in holding that no lease existed because no rent was paid: the rent was the consideration paid by the Home Office.
On human rights, a threat of lawful termination of possession of temporary accommodation was capable of constituting degrading treatment of the minimum level of severity necessary to amount to a breach of article 3; and the loss of one’s home was a most extreme form of interference with the right under article 8, and any person at risk of such interference should in principle be able to have its proportionality and reasonableness determined by an independent tribunal.
She was supported by an intervention from the Scottish Human Rights Commission, which argued that the relevant interference with the pursuer's human rights was the threatened eviction and that was what she must be able to challenge before an independent and impartial tribunal, with safeguards such as the right to advice and assistance, and review of the decision.
Delivering the opinion of the court, Lady Dorrian agreed with the Lord Ordinary that the argument that the pursuer had the rights of a tenant under a lease was "untenable". The occupancy agreement made no provision for consideration and one of the four cardinal elements of a lease was therefore absent. There was clear authority that an occupier without a lease might be evicted without proceedings in court. Once the pursuer's claim was assessed the agreement provided for determination of the right to occupy, on service of written notice. "Thus occupancy was precarious, in the absence of any obligation to pay rent, and [Serco] were entitled to proceed to summary ejection from the property. That does not require court procedure." There were no averments capable of supporting a case of third party rights based on payments by the Home Secretary.
There was no merit in the cases based on the Human Rights Convention: the level of suffering required for a breach of article 3 was not met; there were measures available to challenge a requirement to leave the country, as there were also in relation to the alleged breach of article 8. As regards the intervention, "it seems apparent that the Commission did not appreciate the extent to which the issues in the case hinged on questions of relevancy and specification rather than the arguments, on proportionality and otherwise, which might have been made in an action for judicial review".
Furthermore, the Lord Ordinary erred in concluding that Serco should be classified as a public body. Following the House of Lords in YL v Birmingham City Council (2008), there was a fundamental distinction between the entity that was charged with the public law responsibility, in the present case the Home Secretary, and the private operator who contracted with that entity to provide the service. "Serco... is merely subject to a private law contract with the Home Office to provide the necessary services. The fact that those services are ultimately intended to fulfil a public law responsibility is immaterial; they are still provided on a private law basis."
The court refused the reclaiming motion but allowed the cross-appeal.