In the recently reported decision in YMCA Glasgow v Hamad 2013 Hous. L.R. 81, Glasgow Sheriff Court has provided some useful clarification of the concept of ‘hybrid public authority’ under the Human Rights Act. Hastie Stable counsel Joe Bryce acted for the successful pursuers.
A Glasgow charity had contracted with the Home Office to provide accommodation to asylum-seekers. The contract came to an end and the charity sought repossession of the subjects. The defender sought to rely on the Human Rights Act to resist eviction. He argued that the Home Office would not provide him alternative accommodation if he was evicted, because his asylum claim had failed. He would be destitute and thereby subjected to inhuman and degrading treatment.
Counsel for the charity took the preliminary point that the Act did not apply. Section 6 of the Act made it unlawful only for a public authority to act contrary to a person’s human rights, and the charity was not a public authority. It was argued for the asylum-seeker that the housing providers were a hybrid public authority under section 6.-(3)(b) of the Act, which includes as a public authority “any person certain of whose functions are functions of a public nature.”
The pursuers argued that functions were not of a public nature unless statutory in nature, and the arrangement between the housing provider and the Home Office had been purely contractual with no statutory element. The pursuers also argued that in any event these pursuers were not acting in a public capacity when they sought to evict the defender, for the simple reason that by then their contract with the Home Office had come to an end. Sheriff McCormick found in favour of the second argument and so did not have to decide the first.
A subsidiary issue related to failed asylum-seekers specifically. It was argued for the charity that no failed asylum-seeker could ever rely on a human rights defence to an eviction. Regulation 3.-(2)(e) of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (SI 2005/930) required the Home Office, and no-one else, to provide accommodation for failed asylum-seekers, where the provision of accommodation was necessary in order to avoid a breach of human rights. There was a right of appeal to the First tier Tribunal when a claim for hard cases support was refused. Ergo the remedy for an asylum-seeker insisting on a human right to accommodation was to apply to the Home Office for hard cases support and to appeal to the FTT if that was refused. Here too Sheriff McCormick found it unnecessary to decide this broader question. He decided only that on the facts of his particular case this particular asylum-seeker appeared to have a basis on which to apply for hard cases support, and so would not face destitution on eviction.
YMCA v Hamad does leave undecided the question of whether a body needs to be exercising statutory functions before it can be a hybrid public authority under the Human Rights Act. But the decision does give a helpful indication that it is most unlikely that the Human Rights Act will apply to any non-governmental agency after expiry of the public sector contract to provide the services in question.