Moving on: is Serco’s lock-changing policy legal?

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Is it legal for a company which provides housing to asylum seekers to change their locks when their asylum claims are refused? Or is a court order needed to evict them?

Although the lock-changing policy now appears to have ended, this blog looks at some of the legal issues in a recent Court of Session case on the matter.

Asylum accommodation

Immigration law requires the Home Office to provide housing and very basic financial support for destitute asylum seekers and their dependants.

In 2012, the Home Office contracted out the provision of accommodation to asylum seekers to various companies.

In Scotland the contract was given to the multinational Serco which, until recently, provided housing in Glasgow to almost all Scottish asylum seekers. It did this through “occupancy agreements” – contracts which allow people to occupy property, but which provide less protection than a lease.

Failed asylum seekers and accommodation

Using private companies to do this work proved to be controversial and there were complaints about the quality of the housing.

Another issue was how to deal with asylum seekers whose applications have been refused and who have exhausted their appeal rights (i.e. there has been a final asylum decision).

Although there are limited exceptions, once asylum seekers have exhausted their appeal rights, Home Office support stops after 21 days’ notice is given. Asylum seekers are then expected to return home voluntarily, failing which they will be deported.

In practice, many asylum seekers do not immediately leave their accommodation. They often have nowhere to go and may not be able to return to their country of origin. Deportation also does not happen immediately.

According to Serco, it was often left to pay the accommodation bill for “overstayers” as the Home Office stopped paying it at the end of the 21-day notice period.

In the summer of 2018, Serco declared this to be unsustainable financially and announced a new policy (the “Move-On Protocol”) of changing the locks and evicting individuals with no active asylum claim.

This proved extremely controversial and a case was raised in the Court of Session by the Govan Law Centre, on the behalf of several individuals, arguing that the protocol was unlawful. Serco put its lock-changing policy on hold in response to this.

Campaigners’ legal arguments 

The general rule in Scotland under section 23 of the Rent (Scotland) Act 1984 (the 1984 Act) is that you cannot evict people from leased property without a court order. If landlords want to evict a tenant, they first have to apply to the First-tier Tribunal for Scotland (Housing and Property Chamber) which then takes a decision.

Government housing for asylum seekers is, however, exempted from this rule under UK immigration law. Evictions still have to follow “due process of law” though – i.e. they have to be in line with other legal rules (section 23(5) of the 1984 Act).

Because of this exemption, the campaigners couldn’t base their case on the general “no eviction without a court order rule”.

Instead, their main argument was based on section 22 of the 1984 Act. This makes it a criminal offence (and hence something which can’t be enforced in the civil law) where an occupier is unlawfully deprived of their premises.

The campaigners argued that eviction without a court order would be unlawful because:

  1. it would breach the parties’ human rights
  2. the occupancy agreement was in fact a common law lease
  3. the terms of the occupancy agreement didn’t allow for unilateral termination by Serco.

Court of Session judgment

The Court of Session ruled in the case, Ali v Serco and the Home Secretary, in April 2019.

It agreed with the campaigners that, although Serco was a company, it wasn’t exempt from UK human rights legislation as it was carrying out a governmental function.

This was, however, the campaigners’ only success, as the court disagreed with their other arguments.

In particular, it didn’t think that section 22 of the 1984 Act was relevant since the legislation states that the criminal law offence does not prejudice civil law remedies. In other words, section 22 can’t be viewed as a “catch-all” for all civil law questions on the lawfulness of evictions.

The court did, however, look at the campaigners’ substantive arguments through the “due process” lens of section 23(5) of the 1984 Act. Doing this it found that:

  1. Article 8 of the European Convention on Human Rights (ECHR) on respect for private and family life hadn’t been breached as, in line with case law, there was an appeals process which allowed a court (the Immigration Tribunal) to assess whether eviction was a proportionate measure.
  2. There was no infringement of Article 3 of the ECHR (prohibition of inhuman or degrading treatment) as lawful termination of an occupancy agreement didn’t meet the legal test. The court also stressed that the Home Office is required under immigration law to provide accommodation to failed asylum seekers if this is necessary to avoid a breach of rights in the ECHR.
  3. The occupancy agreement was not a common law lease – for example there was no obligation to pay rent.
  4. The terms of the occupancy agreement did allow for unilateral termination.

What next?

The case has been appealed. No judgment has been published yet (hearings were held in August). However, the issue which the case raises may have been put to bed as Mears, the company appointed in January to take over from Serco, indicated a few days ago that it will not follow Serco’s lock-change policy.

It’s seems unlikely though that this will be the last case in this area. For one, the appeal court could decide not to follow the above judgment, opening up options for future challenges in the field of asylum/housing policy.

And perhaps more importantly, it seems unlikely that the political landscape which led to the case will change. Disagreements remain, for example, on how to treat failed asylum seekers, the role of outsourcing in government, and the interaction between devolved housing law and reserved immigration law.

Ben Wearing – Student Intern SPICe

Angus Evans – Senior Researcher, Justice Health and Social Affairs Research Unit

Blog Image: “RED DOOR AND LOCK” by marc falardeau is licensed under CC BY 2.0