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Is Serco's plan to evict 300 asylum seekers in Glasgow unlawful?

2018-07-31 17:08:40

Around 300 asylum seekers in Glasgow could be about to become street homeless, according to a statement issued by their housing provider Serco last week. The private company contracted by the Home Office to house asylum seekers has stated that as of this week they intend to issue “lock change notices” and start changing the locks on the properties occupied by anyone whose claim has been refused.

Despite calls for this plan to be halted, with a protest scheduled and the Home Secretary being urged to intervene, Serco have shown no sign of backing down. Their position is that “Serco do not hold any legal or contractual duty to continue to accommodation [sic] former asylum cases who have no legal right of occupation in the UK.” It is unclear whether Serco have sought legal advice on this. To date, there has been a haphazard approach from Serco in  their attempts to remove asylum seekers from their accommodation- in some instances they have raised court actions, in others they have changed locks, and some asylum seekers report being harassed out of their accommodation, or being told they have to leave due to the property being unsafe, sometimes with police in attendance also telling them to leave.

The Housing and General Court Team at Legal Services Agency has been assisting any clients who have come to us after being in such circumstances, advising them of their legal rights and assisting them to put forward a defence or take further steps where appropriate.

Asylum Support and Right to Occupy

The background to these evictions is fairly complex- as Serco outlined in their statement last week, the reason they are taking this step is that the cost of accommodating these individuals is no longer being covered by the Home Office. It is likely that most or all of the asylum seekers that Serco intends to evict have no current right to asylum support. If support is put back in place then Serco should stop the eviction and the asylum seeker should have the right to be accommodated connected to their right to asylum support. It is recommended that all asylum seekers threatened with eviction take advice on claiming asylum support and, if their application is refused, take legal advice.

Appeals and Fresh Claims and Right to Occupy

Eligible asylum seekers should not lose their right to asylum support while their asylum claims are ongoing, including if they have an outstanding appeal.

For those whose appeal rights are exhausted, a fresh claim can sometimes be made. If this has been made, an eligible asylum seeker should regain a right to asylum support, including accommodation.

Asylum support usually ends 21 days after an asylum seeker’s appeal rights become exhausted. Legal advice should therefore be sought as soon as possible once the appeal process concludes. The Women and Young Persons Department at Legal Services Agency may be able to assist with appeals and fresh claims where the client is a migrant woman or is aged under 25.

Legal Rights to Occupy?

So what is our opinion as to the legality of Serco’s plan to move forward with the proposed lock changes? All clients will need to be advised on a case- by- case basis, but there are protections in Scots law which may apply and it is certainly questionable as to whether Serco’s proposal is lawful.

In Scotland, a person’s right to remain in a property can come from statute, a contract or common law. In respect of accommodation provided to asylum seekers, they are excluded from certain protections, but this does not mean they have no rights at all.

The provision to prevent eviction without due process of law (i.e. a court order) in legislation is in s23 of the Rent (Scotland) Act 1984. There are exclusions to the general rule, contained in s23A, and one is that “Nothing in section 23 of this Act applies to a tenancy or right of occupancy if it is granted in order to provide accommodation under section 4 or Part VI of the Immigration and Asylum Act 1999.” This is very likely to cover all of the asylum seekers threatened with eviction, as it is difficult to see on what basis Serco would have offered them accommodation other than as part of their right to asylum support.

Whether a court order is required in terms of  s23 or not, Serco may still decide it is advisable for one to be obtained. This is because there is still a protection from being unlawfully evicted, contained in s22 of the 1984 Act, which does apply to those provided accommodation as part of their asylum support. Section 22 makes it a criminal offence to unlawfully evict, but there may also be civil remedies available for those who have been evicted unlawfully, including a right to compensation.

 

Another statute that applies to evictions, albeit less directly, is the Equality Act 2010. Section 35 of that Act states that anyone who manages premises must not harass or victimise the occupier or do so in a discriminatory manner.

Serco is likely to be considered to be managing its premises in changing the locks but harassment, victimisation and discrimination have very precise meanings in the Act and so each individual should obtain legal advice as to whether Serco’s conduct has been unlawful in terms of the Equality Act 2010.

Asylum seekers are likely to have been given some kind of contract governing the provision of housing from Serco to them, often framed as an “Occupancy Agreement.” Notwithstanding any lack of statutory protection, the terms of the contract may give rights in relation to eviction, and legal advice should be sought on this.

What happens next?

If the political pressure does not lead to the eviction process being halted, asylum seekers should take legal advice as soon as possible on their housing rights. In many cases there may be legal steps that can be taken to assist them.

Ultimately, beyond the legal question of the lawfulness of Serco’s actions lies a broader political question. We at Legal Services Agency are extremely concerned with the UK Government policy threatening refused asylum seekers with destitution. Regardless of immigration status, people should be able to access safe accommodation to avoid destitution.

If anyone has any further queries please contact Kirsti Nelson or Siobhan Murphy on 0141 353 3354, or by email to kirstinelson@lsa.org.uk or  siobhanmurphy@lsa.org.uk.