Housing issues, it seems, have never been so topical. In the press, there are articles about the "housing crisis" on an almost daily basis.
In Scotland, the first tier tribunal was set up towards the end of 2017 to deal with housing disputes. Private residential tenancies were also created, partly to provide additional security of tenure to tenants. This includes the abolition of the no-fault procedure for seeking recovery of a property.
In England, similar action has recently been taken in removing the ability of a landlord to terminate a tenancy for no reason. Most recently, the court has issued its judgement in the cases of Shakar Omar Ali and Lana Rashidi, both against SERCO Limited and the Secretary of State for the Home Department.
Background to these cases
In terms of the Immigration and Asylum Act 1999 ("1999 Act"), the Secretary of State is obliged to make available accommodation to asylum seekers before their application has been finally determined. Both pursuers were asylum seekers in Glasgow (which welcomes the highest number of asylum seekers of any UK local authority), whose applications had been refused. SERCO is contracted on behalf of the Home Office to provide accommodation to asylum seekers and indicated their intention to carry out "lock change" evictions, i.e. recovering possession of a property without an order from the court. Whilst only two cases were before the court, they are representative of a much larger number of cases waiting in the background. Press reports put the number at around 300.
The proposals have been controversial; there have been protests against the procedure by housing charities. Afghanistani asylum seekers have gone on hunger strike and protesters have gathered outside the Home Office in Glasgow. SERCO claims to have suffered an £80 million loss as a result of failed asylum seekers remaining free of charge in their properties as funding and support is withdrawn once all asylum avenues have been exhausted.
A court action was raised in the Court of Session with the pursuers seeking declarator that they were entitled to be provided with accommodation by the Secretary of State in terms of the 1999 Act; declarator that evicting them from the property without a court order would be unlawful in terms of the Rent (Scotland) Act 1984 and separately unlawful in terms of their European Convention on Human Rights (ECHR) articles 3 and 8 (right not to be subjected to inhuman or degrading treatment and right to respect for private and family life); and finally interdict against SERCO for ejecting them from the property without a court order.
The legal arguments
The pursuers agreed that ejection from their property without a court order would be unlawful. They argued that SERCO, acting on behalf of the Secretary of State, was exercising functions of a public nature. As such, it could not act in such a way that would be incompatible with the pursuers' rights in terms of the ECHR. Changing the locks of a property without first obtaining a court order to do so would be such a breach.
Secondly, they argued that eviction without a court order would be unlawful as the pursers occupancy rights arose as a result of an occupancy agreement which effectively amounted to a lease under the common law. Finally, they argued that the occupancy agreement did not permit unilateral termination of the pursuers' occupation of their homes. SERCO were not in a position to know whether a person's asylum claim had been finally determined and therefore errors could easily be made.
For both SERCO and the Secretary of State, it was agreed that the court actions were irrelevant in law and therefore should be dismissed. There could not be unlawful conduct in terms of the Act as provision of temporary accommodation to asylum seekers was excluded. SERCO also attempted to argue that it was not a public authority and accordingly could not be in breach of the ECHR. Even if SERCO ought to be regarded as a public authority, it would not be in breach of the convention rights as there was a possibility of an appeal to the first tier tribunal against refusal or termination of the occupancy rights. Finally, they argued that the proposition that the pursuers were tenants was unfounded. No rent was paid on behalf of them and so there could be no lease.
After hearing parties on the issues, Lord Tyre issued his decision on 12 April 2019. While he found that SERCO were exercising the functions of the public body in the circumstances described, he found against the pursuers in all other points.
He was not persuaded that the 1984 Act could be of any assistance to the pursuers. In terms of the 1984 Act the protection offered was not extended to asylum seekers who were being provided accommodation under the 1999 Act. In his opinion, there was no breach of convention rights occasioned by the changing of the locks. There were sufficient procedural checks and balances in place prior to this point to satisfy the pursuers' rights without the need for an additional court order authorising evictions. He also rejected the proposition that the apparently lawful termination of possession of temporary accommodation would be capable of constituting degrading treatment in terms of article 3 of the ECHR. There requires to be a minimum level of severity necessary to amount to such a breach and that could not be the case here.
Lord Tyre did not agree that the occupancy agreement amounts to a lease at common law. As the payment of rent, one of the four main elements required to bring a lease into existence, was absent, there could be no lease. Similarly, he rejected the argument that the occupancy agreement did not of itself permit SERCO to unilaterally terminate the pursuers occupation of their home. This was not the case as there was a clause providing for service of a written notice upon the occupants. Lord Tyre made it clear that he was being asked to ascertain whether the system in place was lawful, which he considered it was. He noted that there may be circumstances which would require to be dealt with on their own facts where something had allegedly gone wrong. The action was therefore dismissed.
Lord Tyre's decision demonstrates a careful consideration of the right of potentially vulnerable asylum seekers to ensure that the action of the Home Office and their contractors are compliant with both the legislation ECHR and domestic.
After an examination of the legal position in detail, it appears that the actions of the Secretary of State and SERCO are lawful. There are sufficient checks and balances in place to protect their position while the asylum process is ongoing. While the system in place is generally lawful, any future cases will turn on their facts and may be subject to challenge if there is any departure from the usual system.
SERCO is entitled to seek removal of occupants of their property where a person is no longer entitled to remain in this country or to be supported by the state. Failure to remove them from the property would simply allow them to remain in place without charge indefinitely. While this case deals with the specific rules relating to asylum seekers, it does confirm that a court order is not always required for gaining entry to a property, however, caution should always be taken.
What happens next?
Representatives of the pursuers have indicated that they have commenced action to appeal the decision. Organisations such as the Scottish Human Rights Commission and the Equalities and Human Rights Commission have both indicated that they are considering their next steps. Housing charities and Glasgow City Council have asked that no lock change evictions are carried out on the basis of this decision. They are actively seeking an alternative resolution.
In the meantime, Serco has indicated that it does not intend to take further steps at present. This decision is therefore unlikely to be the end of the issue.