SHAKAR OMAR ALI AGAINST SERCO LIMITED AND OTHERS AND LANA RASHIDI AGAINST SERCO LIMITED AND ANOTHER [2019] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SHAKAR OMAR ALI AGAINST SERCO LIMITED AND OTHERS AND LANA RASHIDI AGAINST SERCO LIMITED AND ANOTHER [2019] ScotCS CSOH_34 (12 April 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_34.html Cite as: 2019 SLT 463, [2019] CSOH 34, 2019 GWD 13-204, [2019] ScotCS CSOH_34, 2019 Hous LR 30

(FIRST) SERCO LIMITED, (SECOND) COMPASS SNI LIMITED, and (THIRD) SECRETARY

(FIRST) SERCO LIMITED and (SECOND) SECRETARY OF STATE FOR THE HOME

Defenders (Serco Limited and Compass SNI Limited); Connal QC, Byrne; Pinsent Masons LLP

Defender (Secretary of State for the Home Department); McIlvride QC, Gill; Morton Fraser LLP

[1] Serco Limited (to whom, along with its former sub-contractor Compass SNI Limited,

I shall refer as “Serco”) is a party to a contract with the Secretary of State for the Home

Department, in terms of which it provides accommodation and support to asylum seekers

on the Secretary of State’s behalf. The principal issue that has been raised for determination

in these proceedings is whether it is unlawful for Serco to evict an asylum seeker whose

claim for asylum has been refused from his or her accommodation without first obtaining a

court order authorising it to do so. I was advised that the two cases with which this opinion

is concerned are regarded by all parties as representative of a larger number of cases in

[2] Ms Ali is a Kurdish Iraqi national who avers that she is married to a Mr Aryan

Hameed. They currently reside together in a flat in Glasgow. On 5 March 2016 Mr Hameed

applied for asylum. Ms Ali, who had previously made a claim of her own for asylum,

withdrew it and became a dependent on Mr Hameed’s application. That application was

refused on 25 August 2016. An appeal to the First-tier Tribunal (“FTT”) was refused on

7 April 2017, and a further appeal to the Upper Tribunal was refused on 17 October 2017.

Mr Hameed became appeal rights exhausted on 2 November 2017, at which date neither he

nor Ms Ali had an extant claim for asylum. In the course of the hearing I was informed that

on 29 October 2018 further submissions were made on Mr Hameed’s behalf to the Secretary

of State, but that on 25 January 2019 those submissions were rejected on the ground that they

did not amount to a fresh claim. I was further informed that proceedings for judicial review

of that decision are in contemplation, and that an application for support under section 4 of

the Immigration and Asylum Act 1999 (“the 1999 Act”, discussed below) has been made and

[3] Ms Ali and Mr Hameed took up occupancy of the flat in September 2017, in

accordance with an occupancy agreement entered into between Serco and Ms Ali on 6

September 2017. On 31 May 2018, Serco served notice addressed to Mr Hameed that their

right to occupy the flat was terminated as from 13 June 2018, warning them that if they did

not vacate the flat by that date, legal action might be taken through the courts to evict them.

Ms Ali avers, however, that on 29 July 2018, Serco announced a new policy of changing

locks and, without any court process, evicting asylum seekers whom it considered to have

no continuing entitlement to be provided with accommodation. In a letter dated 1 August

2018 to Glasgow City Council, Serco’s group chief executive confirmed that Serco had

“developed a very precise set of protocols and procedures to cover lock-changes, called a

‘Move On Protocol’” which had been agreed in recent weeks with the Council.

[4] Ms Rashidi is married to a Mr Rabar Razaie. She avers that they are both Kurdish

Iranian nationals. They arrived in the United Kingdom on 22 February 2017 and claimed

asylum. Ms Rashidi subsequently withdrew her application and became a dependant on

Mr Razaie’s application. That application was refused by the Secretary of State on 2 June

2017. An appeal to the FTT was refused on 26 July 2017, and a further appeal to the Upper

Tribunal was refused on 14 March 2018. Mr Razaie became appeal rights exhausted on

[5] Ms Rashidi and Mr Razaie took up occupation of a property in Glasgow in March

2018, in accordance with an occupancy agreement entered into between Serco and

Mr Razaie. On 23 April 2018, the Secretary of State informed Mr Razaie that as his appeal

rights were exhausted, a decision had been taken to discontinue his asylum support, and

that he and Ms Rashidi were expected to leave the property by 6 May 2018. On 15 June

2018, Ms Rashidi made a second claim for asylum in her own name with Mr Razaie as a

dependant on it. On 22 June 2018 the Secretary of State advised her that she was not eligible

to claim asylum because she had previously made and withdrawn a claim. On 29 June 2018

the Secretary of State refused an application by the pursuer for asylum support; however, on

16 July 2018, the FTT decided that she had an outstanding claim for asylum and was eligible

for support under section 95 of the 1999 Act (discussed below). On 6 August 2018 the

Secretary of State informed Ms Rashidi by letter that he would provide her and her

dependants with accommodation and subsistence support while her asylum application was

pending or any subsequent appeal was outstanding. Mr Razaie and Ms Rashidi continue to

[6] Ms Rashidi avers that on 27 May 2018 she suffered a miscarriage which she believes

happened because of “the stress and mental anguish caused by the constant threats of

eviction from [Serco]”. She further avers that she has been diagnosed as suffering from post-

traumatic stress disorder, with low mood and anxiety. She too makes reference in her

pleadings to a change of policy by Serco in relation to eviction without a court process,

[7] In each of the two cases the pursuer concludes for the following remedies:

1. Declarator that she is entitled to be provided with accommodation by the

defenders under section 95 of the 1999 Act while her application for asylum is being

2. Declarator that evicting her from the property she is occupying without a court

order would be unlawful, et separatim unlawful in terms of section 6 of the Human

Rights Act 1998 having regard to her rights under articles 3 and 8 of the European

3. Interdict and interim interdict against Serco from ejecting her from the property she

A conclusion in each case for declarator that eviction would breach the pursuer’s rights

under Article 1 of the First Protocol to the Convention was not insisted upon. It was also

conceded, in Ms Rashidi’s case only, that given the Secretary of State’s acceptance that she

was entitled to be provided with accommodation and support pending determination of her

current asylum application, declarator in terms of the first conclusion was unnecessary.

Statutory entitlement to accommodation of asylum seekers and former asylum seekers

[8] Section 95(1) of the 1999 Act empowers the Secretary of State to provide, or arrange

for the provision of, support for asylum seekers and their dependants who appear to be

destitute or likely to become destitute. A person is destitute in this connection if he does not

have adequate accommodation or any means of obtaining it, or has adequate

accommodation or the means of obtaining it but cannot meet his other essential living needs.

“Asylum seeker” is defined in section 94(1) as a person who is not under 18 and has made a

claim for asylum which has been recorded by the Secretary of State but not yet determined.

In terms of section 94(3) and (4), a claim for asylum is “determined” at the end of a period

(to be prescribed) beginning on the date of notification of the Secretary of State’s decision or,

if the claimant has appealed, on the date when the appeal is disposed of, ie when it is no

longer pending for the purposes of inter alia the Immigration Acts. The combined effect of

section 17 of the UK Borders Act 2007 and regulation 2 of the Asylum Support (Prescribed

Period following Appeal) Regulations 2007 is that the period prescribed for the purposes of

section 94 is (a) the period during which an in-country appeal against an adverse decision by

the Secretary of State may be brought (disregarding the possibility of an appeal out of time);

or (b) where an appeal is timeously made, 21 days after the appeal has been finally

[9] Although section 95 is drafted in permissive terms, it was common ground that the

power granted by it to the Secretary of State was converted into a duty incumbent upon him

by regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005, in order to

implement Council Directive 2003/9/EC which laid down minimum standards for reception

of asylum seekers. Under section 103(1) and (2) of the 1999 Act, a decision by the Secretary

of State that a person does not qualify for accommodation or support under section 95, or a

decision to stop providing accommodation or support before it would otherwise have come

to an end, may be appealed to the FTT. The FTT may require the Secretary of State to

reconsider the matter, or substitute its decision for the decision appealed against, or dismiss

[10] If a claim is “determined” (as defined above) without asylum having been granted,

the person in question ceases to be an asylum seeker as statutorily defined, and the Secretary

of State’s obligation in terms of section 95 comes to an end. However, section 4 of the 1999

Act empowers the Secretary of State to provide, or arrange for the provision of, facilities for

the accommodation of a person whose claim for asylum has been rejected, and for his or her

dependants. The criteria to be used by the Secretary of State in deciding whether or not to

provide or arrange, or to continue to provide or arrange, accommodation in terms of

section 4 are contained in regulation 3 of the Immigration and Asylum (Provision of

Accommodation to Failed Asylum-Seekers) Regulations 2005, and are as follows:

(i) the person appears to the Secretary of State to be destitute; and

(ii) one or more of the following conditions (in regulation 3(2)) is satisfied:

(a) he is taking all reasonable steps to leave the UK or place himself in a position to

(b) he is unable to leave the UK because of a physical impediment to travel or some

(d) he has made an application for judicial review of a decision in relation to his

(e) the provision of accommodation is necessary for the purpose of avoiding a

If the Secretary of State decides not to provide, or not to continue to provide,

accommodation for a person under section 4, the same right of appeal to the FTT is available

under section 103(2A) of the 1999 Act as is available for an appeal against a section 95

[11] Where an asylum seeker who, in pursuance of section 95 of the 1999 Act, has been

provided with a tenancy or licence to occupy accommodation has his claim determined, or

ceases to be destitute, he may be given notice to quit in accordance with the provisions of

regulation 22 of the Asylum Support Regulations 2000. The period of notice specified by

regulation 22 is seven days. I was informed that in practice a period of notice of 21 days is

used. The notice given to the occupant will draw his or her attention to the possibility of an

application under section 4. The aim, I was advised, was for an application under section 4,

if made promptly, to be determined within the 21-day period of the notice to quit. There is

no statutory period of notice to quit to be given to a person who has been provided with

[12] Section 23 of the Rent (Scotland) Act 1984 contains a prohibition of recovery of

possession, otherwise than by proceedings in the FTT, of premises let as a dwelling where

the tenancy has come to an end but the occupier continues to reside in the premises.

However, section 23A lists a number of circumstances in which the protection conferred by

section 23 does not apply. One of these (section 23A(5A)) is a tenancy or right of occupancy

granted in order to provide accommodation under either section 4 or section 95 of the 1999

Act. It is also to be noted that section 23(5) states that “Nothing in this section shall be taken

to affect any rule of law prohibiting the securing of possession otherwise than by due

[13] A document entitled “Occupancy Agreement” between Serco and Ms Ali signed on

6 September 2017 was produced. An agreement in identical terms, mutatis mutandis, albeit

with some glitches in paragraph numbering, between Serco and Mr Razaie signed on

16 March (presumably 2018) was also produced. Nothing turns on whether those

agreements were entered into by one of the pursuers or by her husband. The preamble to

“This Occupancy Agreement sets out the terms on which the Occupant occupies the

property (“the property”) leased by Serco as part of its contract with [sic] the SERCO

and UKVI and the duties and obligations of Serco and the Occupant. This property

Clause 1 narrates that Serco agrees to make the property available to the Occupant, on a

temporary basis, on behalf of UKVI (ie UK Visas and Immigration), whilst his/her asylum

application is being assessed. The commencement date of the agreement is specified.

Serco’s obligations include (i) ensuring at the commencement and throughout the period of

occupancy that the property is structurally sound, in a wind and watertight condition, and

in a reasonable state of repair and maintenance; (ii) providing a day to day housing

management service to resolve any issues arising; and (iii) providing furniture and utensils

for use within the property. Clause 2 narrates the Occupant’s obligations. These include

moving, if required by Serco or UKVI, to another property considered appropriate, on a

minimum period of seven days’ notice. Clause 4.1 and 4.2 state as follows:

“4.1 This agreement shall terminate upon the determination of the Occupant’s

asylum claim, subject to service of a written notice in terms of 4.2 hereof.

4.2 Serco may terminate this Agreement by serving a written notice on the

Occupant, specifying the date and time of, and the reason for the termination.”

[14] On behalf of each of the pursuers it was submitted that her eviction by Serco from

the premises that she occupied would be unlawful without a court order. The argument

was founded upon section 22 rather than section 23 of the Rent (Scotland) Act 1984.

Section 22 creates a criminal offence, and hence a civil wrong, where a person unlawfully

deprives the residential occupier of any premises of his occupation of the premises or any

part thereof. “Residential occupier” is defined by section 22(5), in relation to any premises,

as a person occupying them as a residence, whether under a contract or by virtue of any

enactment or rule of law giving him/her the right to remain in occupation or restricting the

[15] Eviction without a court order would be unlawful, in terms of section 22, for three

separate reasons. In the first place, it would constitute a breach of the occupant’s rights

under ECHR articles 3 and 8. Serco was a “public authority” within section 6(3) of the

Human Rights Act 1998, being a person certain of whose functions were functions of a

public nature. Reference was made to the observations of Lord Nicholls in Aston Cantlow

and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546 at paragraphs

10-12, and to the opinion of Lord Neuberger in YL v Birmingham City Council [2008] 1 AC 95

at paragraphs 165 and 168. The factors in the present case which indicated that Serco was

 The Secretary of State had procured it to provide support and accommodation on his

behalf and in order to meet the UK’s international and domestic obligations to

 Serco was publicly funded to provide support and accommodation to asylum

seekers, in accordance with the Secretary of State’s directions;

 The 1999 Act had introduced a “dispersal” procedure for asylum seekers, whose

support and accommodation had previously been a function of local authorities;

 The asylum seeker had no choice: he/she had to accept the accommodation offered

There was no material difference between Serco’s function in providing accommodation and

other circumstances in which a private company had been held or admitted to be exercising

functions of a public nature, such as Campbell v Scottish Ministers [2017] CSOH 35 concerning

[16] As a person exercising functions of a public nature, Serco could not act in a way that

was incompatible with the pursuers’ Convention rights. The policy and practice of evicting

occupants by changing locks without a court order, and thus placing the occupants in a state

of fear and alarm and affecting their mental health, amounted to degrading treatment

contrary to article 3. Separately, the “Move On Protocol” was incompatible with their

article 8 rights as it was a disproportionate interference with their rights to respect of private

and family life and their home. In principle, any person at risk of losing his or her home

should be able to have the proportionality of their eviction determined by an independent

tribunal, even where the domestic law right to occupation had come to an end: Manchester

City Council v Pinnock [2011] 2 AC 104; Panyushkiny v Russia [2018] HLR 7. The onus rested

upon the state to provide a mechanism for assessment by a court of the proportionality of

eviction; the applicant should not be required to initiate an appeal process. In any event, the

rights of appeal to the FTT conferred by section 103 of the 1999 Act were insufficient because

the decision to evict was made by Serco upon notification from the Secretary of State that no

further support or accommodation should be provided, without analysis by an independent

tribunal of such eviction. In practice such appeals did not prevent eviction.

[17] In the second place, eviction without a court order was unlawful because the

pursuers’ occupancy rights flowed from an agreement that amounted to a lease in terms of

Scots common law. The four cardinal elements of a lease identified in Gray v University of

Edinburgh 1962 SC 157 were present. In Brador Properties Ltd v British Telecommunications plc

1992 SC 12, the Lord Justice-Clerk (Ross) cited a definition of a lease by Rankine which made

clear that the consideration for a lease need not be money alone. In the circumstances of the

present case, consideration for exclusive possession of the property was constituted by the

existence of an active asylum application to the Secretary of State which gave rise to an

obligation under section 95 to provide support and accordingly to a payment to Serco by the

Secretary of State. By this means Serco received a payment in exchange for the occupation

by the pursuers and their respective husbands of their homes. It was also noteworthy that

certain provisions of primary legislation contemplated asylum seekers being provided with

tenancies: examples were paragraph 82 of Schedule 14 to the 1999 Act, making consequential

amendments to the Housing (Scotland) Act 1987, and regulation 22 of the Asylum Support

Regulations 2000 (mentioned above) where reference is made to a person who has “a

[18] In the third place, clause 4.1 of the Occupancy Agreement did not permit unilateral

termination of the pursuers’ occupation of their respective homes. Serco was not in a

position to know whether a person’s asylum claim had been finally “determined”, given the

range of possibilities for challenge or submission of a fresh application. Errors could easily

be made. So long as the matter remained in dispute, the occupancy agreement remained in

force. The only lawful means of bringing it to an end was by an order of the court.

[19] On behalf of the Secretary of State it was submitted that the pursuers’ actions were

irrelevant in law and should be dismissed. As regards the first conclusion in each case, ie for

declarator that the pursuer was entitled to be provided with accommodation under

section 95 while her application for asylum was being determined, there was no live issue in

relation to Ms Rashidi as the Secretary of State had made clear that he accepted that he had

an obligation to provide accommodation under section 95 pending determination of her

extant claim., and was in fact providing such accommodation. Ms Ali’s case for such

declarator was irrelevant because she did not aver that either she or her husband had an

extant and undetermined asylum claim. Intimation of an intention to seek judicial review of

refusal of accommodation and support did not bring her within section 95.

[20] As regards the second conclusion, ie for declarator that eviction without a court

order would be unlawful, the pursuers’ case was based upon a misreading of the provisions

of the Rent (Scotland) Act 1984. Section 22, which created an offence, applied only to

unlawful deprivation of possession: that begged the question of whether the apprehended

actions by Serco would be unlawful. The requirement that court proceedings be brought in

certain circumstances was contained in section 23, not section 22 of the Act, and the whole of

section 23 was disapplied by section 23A(5A) to provision of accommodation to asylum

seekers in terms of the 1999 Act. There remained no provision of the 1984 Act that would

[21] The pursuers’ argument at common law was also irrelevant because the four cardinal

elements of a lease were not all present. There was no rent payable in terms of the

occupancy agreement. Fees paid by the Secretary of State to Serco in respect of the provision

of accommodation to asylum seekers were a matter between those parties alone. They were

of no concern to the pursuers and did not indicate consensus in idem as between the occupier

and Serco or the owner. Reference by way of analogy was made to Mann v Houston 1957

SLT 89, Lord President Clyde at 92. The situation was not analogous to the payment of

housing benefit on behalf of a tenant: in that case funding was provided to meet the tenant’s

[22] Nor had the pursuers pled a relevant case that eviction without a court order would

breach their Convention rights. Firstly, Serco was not a public authority within the

description in section 6(3) of the Human Rights Act 1998. The following principles should

be taken from YL v Birmingham City Council (above): (i) a distinction had to be made

between the function of a public authority in making arrangements in order to fulfil its

statutory duty and that of a private company in providing care and accommodation under

contract with the authority on a commercial basis rather than by subsidy from public funds;

and (ii) the provision of care and accommodation by the private company, as opposed to its

regulation and supervision, was not an inherently public function. Although the pursuers

had public law rights against the Secretary of State which were unaffected by the existence

of the contract between the Secretary of State and Serco, they did not have Convention rights

against Serco. The case of Campbell v Scottish Ministers was distinguishable because it

concerned the exercise of coercive public powers which had to be viewed as public

functions. If, as was submitted, Serco was not to be regarded as a public authority, it was

not subject to Convention duties. Recovery of possession of property by a private sector

landlord did not engage article 8 of the Convention: cf McDonald v McDonald [2017] AC 273;

[23] Even if Serco did fall to be regarded as a public authority, it would not be a breach of

either of the pursuers’ Convention rights for Serco to change the locks on their property or

otherwise evict them without having first obtained a court order. As regards article 8 of the

Convention, it was accepted, on the basis of the Strasbourg jurisprudence and subsequent

decisions of the Supreme Court, that a person at risk of being dispossessed of his home by a

public authority should in principle have the right to have the question of proportionality

determined by an independent tribunal making its own assessment of the facts, even if the

person’s right of occupation under domestic law has come to an end. That requirement was

met here by the possibility of appeal to the FTT against refusal or termination of occupancy

in terms of section 95, and/or refusal to provide accommodation in terms of section 4. The

latter expressly obliged the Secretary of State to provide accommodation for a person who

was destitute and where the provision of accommodation was necessary to avoid breaching

his or her Convention rights. It was not necessary to provide for a court process to take

place before eviction procedure could begin: R(N) v Lewisham LBC [2015] AC 1259. Neither

pursuer had pled circumstances amounting to treatment capable of constituting a breach of

[24] Senior counsel for Serco sought to draw a distinction between immigration cases on

the one hand and housing cases on the other. These were immigration cases, and there was

a coherent system in place that protected the human rights of asylum seekers. The relevant

legislative provisions were not primarily concerned with the provision of housing but rather

with the provision of temporary accommodation pending the outcome of an application for

asylum. Where such an application failed, the assumption was that the failed asylum seeker

would leave the UK. Section 4 of the 1999 Act was concerned primarily with providing

temporary accommodation to persons who, for one of the reasons listed, was unable to

leave, but it also covered persons whose Convention rights would be breached if

accommodation was not provided. Rights of appeal to an independent tribunal were made

available. Parliament had further provided that removal of asylum seekers from temporary

accommodation was exempt from any requirement to take court proceedings to obtain

possession. Parliament had thus created a seamless structure in which all material decisions

were taken by the Secretary of State and in which the Convention rights of the asylum

seeker, or former asylum seeker, could be protected. There was accordingly no requirement

[25] Serco was not a public authority and accordingly the Human Rights Act 1998 had no

application to it. Any challenge required to be made to the Secretary of State’s decision that

the right to accommodation had come to an end. It would be curious if a failed asylum

seeker who had exhausted his or her remedies against the Secretary of State had a further

right to resist removal by Serco without a court order. The leading authority, YL v

Birmingham City Council, supported the defenders’ position. The McDonald/FJM case was

not in point because it was concerned with rights under housing law, not immigration law.

[26] The pursuers’ argument that they were tenants protected by section 22 of the Rent

(Scotland) Act 1984 was also unfounded. As no rent was paid by or on behalf of the asylum

seeker, there was no lease. Asylum seekers provided with accommodation in terms of the

[26] The issue is whether the pursuers have identified a basis in law for their contention

that their eviction, including within that expression the changing of locks, by Serco without

a court order would be unlawful. The pursuers have founded their case upon section 22 of

the 1984 Act which, as I have noted, creates a criminal offence of unlawfully depriving a

residential occupier of his occupation of the premises. I am not persuaded that this

provision created any new civil right in favour of the residential occupier. Section 22(4)

states expressly that the section is not to be taken to prejudice any liability or remedy to

which a person guilty of an offence under section 22 may be subject in civil proceedings.

One is thus directed elsewhere to identify a basis upon which the person unlawfully

deprived of possession may seek a remedy in the civil courts. That is unsurprising when

one bears in mind that the offence consists of unlawful deprivation of occupation; the section

does not purport to determine what is or is not unlawful in this context.

[27] Nor is section 23 of any direct assistance to the pursuers. That section created a new

protection for occupiers of property let as a dwelling otherwise than as a statutorily

protected tenancy or a furnished letting from eviction without proceedings in the FTT. As

already noted, however, that protection was not extended to asylum seekers provided with

accommodation under either section 95 or section 4 of the 1999 Act. Once again the occupier

is left with whatever rights he or she has at common law, and in this regard I respectfully

agree with the view expressed by Sheriff GH Gordon QC in Conway v City of Glasgow Council

1999 HousLR 20 at paragraph 6-58 that the disapplication of section 23 to, inter alia, asylum

seekers did not take away the rights preserved by section 23(5). What common law or other

rights, then (if any), do asylum seekers provided with accommodation under section 95 or

[28] I begin with the pursuers’ contention that such eviction would constitute a breach of

the occupier’s human rights in terms of article 3 and/or article 8 of the Convention. Such a

breach could only occur if Serco is to be regarded as a “public authority” in this connection,

[29] In Aston Cantlow (above), Lord Nicholls of Birkenhead observed at paragraphs 10

“10. [The Human Rights Act 1998] does not amplify what the expression ‘public’

and its counterpart ‘private’ mean in this context. But, here also, given the statutory

context already mentioned and the repetition of the description ‘public’, essentially

the contrast being drawn is between functions of a governmental nature and

functions, or acts, which are not of that nature. I stress, however, that this is no more

than a useful guide. The phrase used in the Act is public function, not governmental

12. What, then, is the touchstone to be used in deciding whether a function is public

for this purpose? Clearly there is no single test of universal application. There

cannot be, given the diverse nature of governmental functions and the variety of

means by which these functions are discharged today. Factors to be taken into

account include the extent to which in carrying out the relevant function the body is

publicly funded, or is exercising statutory powers, or is taking the place of central

government or local authorities, or is providing a public service.”

At paragraph 49, Lord Hope of Craighead regarded the phrase “public function” in this

context as “clearly linked to the functions and powers, whether centralised or distributed, of

government”. In similar vein, Lord Rodger of Earlsferry at paragraphs 160 and 163

expressed the view that the essential characteristic of a public authority is that it carries out,

either generally or on the relevant occasion, the kind of public function of government that

would engage the responsibility of the UK before the Strasbourg organs.

[30] All of those observations were referred to with approval by members of the majority

in YL v Birmingham City Council. At paragraph 91, Lord Mance considered that Lord

Nicholls’s view supported a broad application of section 6(3)(b) of the 1998 Act, but also a

factor-based approach. At paragraph 159, Lord Neuberger of Abbotsbury derived assistance

from the emphasis placed by Lord Hope and Lord Rodger, and also Lord Hobhouse of

Woodborough, on functions which are “governmental in nature”. On the other hand,

Lord Neuberger acknowledged at paragraph 167 that the fact that some statutory power is

attached to a function may not always determine that it is “of a public nature”.

[31] Applying these observations to the facts of the present case, and adopting a factor-

based approach as advocated by, among others, Lord Nicholls in Aston Cantlow and Lord

Mance in YL, I have come to the conclusion that when providing accommodation to asylum

seekers and former asylum seekers in terms of its contract with the Home Office, Serco is

exercising a function of a public nature. The implementation by the UK of its international

obligations to receive and provide essential services to destitute people seeking asylum is

clearly, in my view, a function which is governmental in nature. The same would be true if

and to the extent that the UK undertook the task of providing such services to destitute

asylum seekers as a matter of national policy rather than in implementation of international

obligations. Equally, it seems to me that provision of accommodation and essential services

to destitute asylum seekers and their dependants is not a function analogous to the

provision of care and accommodation by a residential care home in pursuance of a contract

with a public authority. It is not in any sense a commercial activity. There is no element of

choice or competition so far as the occupants are concerned. Rather, adopting Lord

Nicholls’s words, Serco is taking the place of central government in carrying out what in

essence is a humanitarian function. The fact that Serco is being paid under a commercial

contract and might have to compete for renewal of its contract does not, in my opinion,

outweigh the significance that must be attached to the context in which Serco acts, namely

the implementation of a function that must, by one means or another, be exercised by a

[32] Another way of approaching the matter would be under reference to the distinction

drawn in freedom of information legislation, mentioned by Lord Mance in YL at paragraph

106, between a person who “appears… to exercise functions of a public nature” and a person

who “is providing under a contract made with a public authority any service whose

provision is a function of that authority”. Provision of accommodation to destitute asylum

seekers or former asylum seekers seems to me to fall within the former category and

therefore within the scope of section 6(3)(b) of the 1998 Act. It has more in common with the

exercise of coercive functions, as in Campbell v Scottish Ministers (above) than with the mere

[33] Having so found, I turn to the question whether Serco has breached the Convention

rights of the pursuers by putting in place a system in which they may be evicted from the

accommodation that they occupy, including by means of changing locks, without the

[34] I deal firstly with article 8, which prohibits interference by a public authority with

the exercise of a person’s right to respect for his private and family life and his home, unless

the interference is in accordance with the law and necessary in a democratic society inter alia

for the protection of the rights and freedoms of others. In Manchester City Council v Pinnock

(above) at paragraph 45, Lord Neuberger distilled the following propositions from the

(a) Any person at risk of being dispossessed of his home at the suit of a local

authority should in principle have the right to raise the question of the

proportionality of the measure, and to have it determined by an independent

tribunal in the light of article 8, even if his right of occupation under domestic law

(b) A judicial procedure which is limited to addressing the proportionality of the

measure through the medium of traditional judicial review is inadequate as it is not

proceedings as a whole which must be considered in order to see if article 8 has been

(d) If the court concludes that it would be disproportionate to evict a person from his

home notwithstanding the fact that he has no domestic right to remain there, it

would be unlawful to evict him so long as the conclusion obtains.

Lord Neuberger also noted, however, that it seemed that the European court had franked

the view that it would only be in exceptional cases that article 8 proportionality would even

arguably give a right to continued possession where the applicant had no right under

[35] In R(N) v Lewisham London Borough Council (above), the applicant sought judicial

review of a housing authority’s decision to terminate her temporary accommodation as a

homeless person, on the ground that recovery of possession without a court order would be

unlawful. The majority of the Supreme Court decided the matter on the basis that the

temporary accommodation provided was not a “dwelling” for the purposes of the relevant

legislation, and so the provisions of that legislation requiring a court order did not apply.

However the Court went on to address the question whether a public authority which

evicted a person when its statutory duty to provide interim accommodation ceased without

first obtaining a court order for possession violated the person’s article 8 rights. In a

judgment with which the majority of the Court agreed, Lord Hodge confirmed (paragraph

65) that it was only in very exceptional cases that an applicant would succeed in raising an

arguable case of lack of proportionality where he had no right under domestic law to remain

in possession, and observed (paragraph 66), under reference to European authorities, that it

was for the occupier to raise the question of proportionality and that the court could deal

with such an argument summarily unless it was seriously arguable. At paragraph 71,

Lord Hodge held, addressing the circumstances of the case before the Court, that any issue

of proportionality could be raised either in a statutory appeal against an adverse decision by

the housing authority, or in proceedings for judicial review of a decision to evict. For these

reasons, he concluded (paragraph 74) that there were procedures by which an independent

tribunal could assess the proportionality of the decision to repossess the accommodation

and determine relevant factual disputes. There were therefore sufficient procedural

safeguards to satisfy the applicant’s article 8 rights without the need for a court order

[36] None of the cases to which I have referred was concerned with provision of

temporary accommodation to asylum seekers or former asylum seekers. The legal

principles enunciated are, however, in my view, stated in sufficiently broad terms to apply

to the provision of temporary accommodation in such circumstances. The question is

whether the statutory scheme for review of a decision to evict an asylum seeker or former

asylum seeker whose entitlement to occupation of temporary accommodation has come to

an end affords an adequate opportunity for the proportionality of eviction to be assessed by

an independent tribunal. In my opinion it does. As I have noted, section 103(1) of the 1999

Act provides a right of appeal to the FTT against a decision by the Secretary of State to

refuse or to stop providing support (including accommodation) under section 95. In

accordance with the authorities to which I have referred, section 103(1) must be interpreted

as empowering the FTT, which is of course an independent tribunal, to address any issue of

proportionality that is raised by the appellant. Similarly, section 103(2A) provides a right of

appeal to the FTT against a decision of the Secretary of State not to provide or continue to

provide accommodation under section 4. It will be recalled that one of the circumstances in

which the Secretary of State must provide accommodation under section 4 to a failed asylum

seeker is where such provision is necessary for purpose of avoiding a breach of that person’s

Convention rights. Clearly, therefore, in such an appeal the FTT will require to address any

issue of proportionality raised by the appellant. The jurisdiction of the FTT is full and

includes investigation of factual issues. I therefore hold that the availability of a right of

appeal to the FTT against an adverse decision under either section 95 or section 4 is

sufficient to enable any arguable issue of proportionality to be raised before and determined

by an independent tribunal, and that, on the authority of the case law to which I have

referred, there is no need for additional proceedings to obtain a court order authorising

[37] A number of arguments were presented as to why the right of appeal to the FTT was

inadequate to satisfy the pursuers’ article 8 rights. It was said that those rights were

concerned with asylum issues rather than housing issues and that the FTT could not

therefore consider questions of proportionality of eviction. I reject that submission: it is clear

from the terms of section 103 that it is concerned with appeals against refusal of temporary

accommodation as opposed to refusal of asylum more generally. For the reasons I have

given, the section must be construed, were there to be any doubt, as enabling the FTT to

consider proportionality, if raised by the appellant as an issue, in order to ensure that the

appellant’s Convention rights would not be breached by eviction. It was also submitted that

the onus of assessing the proportionality of eviction at the end of the section 95 process

should rest upon the Secretary of State, and that a court process was needed to enable that

onus to be discharged. I reject that contention as being contrary to the authority of R(N) v

Lewisham, and the authorities cited by Lord Hodge at paragraph 66 of his judgment.

[38] It was further contended that the Move On Protocol purported to entitle Serco to

change locks without any assessment of proportionality; that the expedited eviction process

was in practice detached from the legislation; that the exercise of appeal rights against an

adverse decision under section 4 did not in practice stop eviction and lock changing from

occurring; that Serco was not always informed of the exercise by a failed asylum seeker of

the right of appeal against an adverse decision under section 4; and that the statutory

procedure was so complicated that the only practicable means of making a proportionality

assessment was in a sheriff court action for recovery of possession. In addressing these

arguments it is important to draw a distinction between, on the one hand, the operation of

the statutory regime as it was intended by Parliament to work and, on the other hand, the

problems that may arise if and when the statutory regime is not properly adhered to. The

object of the present litigation, as I understand it, is to challenge the lawfulness of the regime

working as intended. It is not, therefore, relevant in these proceedings to consider the

situation of a person where, for example, there is a breakdown of communication between

the Secretary of State and Serco regarding that person’s asylum status, or where a person

who is in the process of exercising a right of appeal or, a fortiori, a person who has been

granted refugee status, is wrongfully threatened with eviction or a lock change. Such cases

would require to be dealt with on their own facts, and remedies such as interim interdict

might have to be sought. But I am concerned here with the question whether the existence

of a system whereby failed asylum seekers may be evicted or have the locks on their

properties changed at a time when they have no extant right of appeal is of itself unlawful.

That question cannot be determined by reference to cases in which things have gone wrong

as a result of failures by Serco or by the Secretary of State’s officials to comply fully with the

statutory safeguards. For all of the foregoing reasons the pursuers’ argument based upon

[39] I can deal rather more briefly with the pursuers’ argument based upon breach of

their rights under article 3 of the Convention. That article provides that no-one shall be

subjected to torture or to inhuman or degrading treatment or punishment. It was submitted

on behalf of the pursuers that the Move On Protocol, including in particular its threat of

changing locks, was a sword of Damocles which hung perpetually over the pursuers,

amounting to degrading treatment that affected their mental health. In the case of

Ms Rashidi, it was argued, proof before answer was required of her averment that she had

miscarried due to “the extreme stress caused by the constant threat of eviction”. I note

however that only one letter from Serco (dated 9 July 2018) threatening eviction was lodged

or referred to, and that that letter was superseded by the Secretary of State’s confirmation on

6 August 2018 that he would provide Ms Rashidi and her dependants with accommodation

and subsistence support while her asylum application was pending.

[40] In R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, the House

of Lords held that a decision by the Secretary of State to refuse support under section 95 of

the 1999 Act to persons who were destitute but who were found not to have claimed asylum

as soon as was reasonably practicable after their arrival in the UK was capable of engaging

article 3 if the consequences were so severe as to amount to inhuman or degrading

treatment. At paragraph 54, Lord Hope of Craighead emphasised, under reference to

ECtHR case law including Pretty v UK (2002) 35 EHRR 1, that ill-treatment must attain a

minimum level of severity if it is to fall within the scope of the expression “inhuman or

degrading treatment or punishment”. In Pretty, the Court said that

“…where treatment humiliates or debases and individual showing a lack of respect

for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or

inferiority capable of breaking an individual’s moral and physical resistance, it may

be characterised as degrading and …fall within the prohibition of article 3”.

[41] I was referred to no authority for the proposition that a threat of ex hypothesi lawful

termination of possession of temporary accommodation is capable of constituting degrading

treatment of the minimum level of severity necessary to amount to a breach of article 3. The

difficulty with the pursuers’ proposition is that it could apply not only to failed asylum

seekers but to any person lawfully threatened with eviction from his or her current place of

residence. One must bear in mind that the Secretary of State has a statutory duty under

section 4 of the 1999 Act to provide accommodation for a failed asylum seeker and his or her

dependants if this is necessary to avoid a breach of the person’s Convention rights, and it is

also relevant to Ms Rashidi’s case to recall that the Secretary of State’s letter dated 23 April

2018 to Mr Razaie intimating discontinuance of support under section 95 drew attention to

the possibility of claiming support under section 4. The position might be different with

regard to persistent threats of unlawful eviction (which might also constitute a criminal

offence under section 22 of the 1984 Act), but that is not the situation with which this

opinion is concerned. In my opinion no relevant case has been made out that the

circumstances of either of the present cases are capable of amounting to a breach of the

[42] I turn next to the pursuers’ argument that their removal from the accommodation

which they respectively occupy would be unlawful without a court order because the

occupancy agreement amounts to a lease at common law. I have narrated (at paragraph 17

above) the basis upon which the pursuers contend that the four cardinal elements of a lease

are present in relation to their occupancy of their accommodation. I am not persuaded that

the circumstances averred by the pursuers can be construed as the payment of rent. The

definition of a lease in Rankine, Leases (3rd ed, page 1) cited with approval by the court in

Brador Properties Ltd v British Telecommunications plc (above, at page 19) is as follows:

“A lease or tack is a contract of location (letting to hire) by which one person grants

and another accepts certain uses, current or definitive, or the entire control, of lands

or other heritages for a period or periods, definite or indefinite, or even in perpetuity,

in consideration of the delivery by the grantee of money or commodities or both,

[43] In the present case the grantee of the right of temporary occupancy pays nothing for

that grant, whether in the form of money or other consideration. The Occupancy Agreement

makes no provision for consideration of any kind. The situation is not, therefore, analogous

to the satisfaction of a tenant’s obligation to pay rent by remittance of housing benefit

directly to the landlord; in the present case there is simply no obligation to be satisfied.

Instead there is a separate contract between the Home Office and Serco in terms of which

Serco agrees to make available temporary accommodation, free of charge, to asylum seekers

falling within section 95 and to failed asylum seekers to whom accommodation is to be

provided under section 4, and the Home Office agrees to remunerate Serco for carrying out

that service. It is not suggested that this contract imposes any obligation upon an individual

occupant of accommodation, and in particular an obligation to make any payment.

Accordingly, in my opinion, one of the four cardinal elements of a lease, namely the rent, is

absent. Not only is there no consensus in idem regarding rent (which was the point at issue in

Gray v University of Edinburgh): there is no obligation to pay rent at all. It follows that the

pursuers as temporary occupants of the accommodation made available by Serco do not

acquire the status of tenants and acquire no right at common law to resist removal without a

court order. I do not consider that any doubt is cast upon this conclusion by the fact that

there are occasional references in asylum and immigration legislation to tenancies or tenants.

At best for the pursuers these references suggest that Parliament envisaged that there might

be situations in which asylum seekers would be granted tenancies, but they do not create an

inference that any situation in which an asylum seeker is provided with temporary

[44] I address lastly the pursuers’ submission that the Occupancy Agreement does not

permit unilateral termination of the pursuers’ occupation of their respective homes. The

argument, as I understood it, was that determination of the asylum seeker’s claim did not of

itself confer any entitlement on Serco to evict him or her from their accommodation,

including changing the locks. This was because at that time it could not be said that the

occupier would have to leave: there could, for example, be an appeal, or a fresh claim, or an

application under section 4, or an application for judicial review. Unilateral action by Serco

[45] In my view this argument too is unsound. As the terms of the Occupancy

Agreement make clear, termination of the agreement under clause 4.1 is subject to service of

a written notice on the occupant specifying the date and time of, and the reason for, the

termination. The notice period is imposed by statute inter alia to allow time for the occupant,

prior to removal, to take any further steps available to him or her that might result in a

prolongation of occupancy of the property. In this context it is worth repeating two points

already made: firstly, that the onus of initiating any further action rests upon the asylum

seeker and not on the Secretary of State, and, secondly, that I am concerned in this opinion

with cases in which the statutory procedure is correctly executed by the Secretary of State’s

officials and by Serco, and not with situations in which errors are made resulting in

remedies being sought according to the circumstances of the particular case.

[46] I am not persuaded that there is anything in either of the pursuers’ cases requiring

proof before answer. On the contrary I am satisfied that neither of the pursuers has made

out a relevant case for any of the orders sought. I shall therefore accede to the defenders’

motions in each action to sustain their pleas to relevancy and to grant decree of dismissal.

Scottish Court of Session Decisions