R (on the application of Marouf) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Rose,Lord Reed,Lord Hodge,Lord Burrows,Lord Richards |
| Judgment Date | 28 June 2023 |
| Neutral Citation | [2023] UKSC 23 |
| Court | Supreme Court |
[2023] UKSC 23
Lord Reed, President
Lord Hodge, Deputy President
Lord Burrows
Lady Rose
Lord Richards
Appellant
Ben Jaffey KC
Emma Dixon
Blinne Ní Ghrálaigh
Julianne Kerr Morrison
(Instructed by Leigh Day (London))
Respondent
Sir James Eadie KC
David Blundell KC
Jason Pobjoy
(Instructed by Government Legal Department)
Heard on 9 March 2023
Lady Rose ( with whom Lord Reed, Lord Hodge, Lord Burrows and Lord Richards agree):
This appeal raises the issue whether the public sector equality duty (“PSED”) imposed by section 149 of the Equality Act 2010 requires public bodies to have due regard to the need to promote the goals listed in that section when exercising their functions in so far as that exercise affects the lives of people living outside the United Kingdom. The Appellant is a woman currently living in Lebanon who wishes to be brought to settle in the United Kingdom. She is a refugee from the conflict in Syria and asserts that she should be treated as eligible to come to the UK under the Vulnerable Persons Resettlement Scheme (“the Resettlement Scheme”) instituted by the Government in 2014. It is accepted by the Secretary of State that she meets the vulnerability criteria for resettlement in the United Kingdom.
The Resettlement Scheme is currently implemented by the Secretary of State relying on the United Nations High Commissioner for Refugees (“UNHCR”) to identify and recommend refugees within their remit to be resettled in the UK. The Appellant is not within the remit of the UNHCR because she is a Palestinian refugee. Palestinian refugees in Lebanon, Jordan, Syria, the West Bank and Gaza fall within the remit of a different United Nations organisation, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). UNRWA was established in 1949, before the UNHCR. Whereas UNHCR has a specific mandate to assist refugees by local integration in the country where they are living, or by resettlement in a third country, UNRWA has no such mandate. Palestinian refugees are the subject of the exclusive mandate of UNRWA and are therefore outside the remit of UNHCR. It follows that in practice, they cannot take part in the Resettlement Scheme.
The Appellant brought judicial review proceedings challenging the lawfulness of the Secretary of State's adoption and operation of the Resettlement Scheme on the grounds that:
(i) the operation of the Resettlement Scheme amounted to unlawful discrimination contrary to section 29(6) of the Equality Act 2010 (“EqA 2010”) and was irrational as a matter of common law;
(ii) the Secretary of State had failed to comply with the PSED because she did not have due regard to the equality needs set out in that section. The Appellant relies particularly on section 149(1)(b) of the EqA 2010 which requires public bodies including the Secretary of State to have due regard to the need to advance equality of opportunity for persons who share a relevant protected characteristic (in this case being a Palestinian refugee) as compared with persons who do not share it (in this case, other refugees).
Elisabeth Laing J (“the Judge”) at first instance held that the claim for unlawful discrimination under section 29(6) EqA 2010 failed because the section did not have the extraterritorial effect on which the Appellant relied. In any event, the discrimination was justified. As to the second ground of challenge, the Judge considered that she was bound by previous authority to hold that the PSED in section 149 did have extraterritorial effect. She held further on the facts that the Secretary of State had not had due regard to that duty to advance equality of opportunity for Palestinian refugees, and so had been in breach of section 149(1)(b).
The Appellant appealed against the Judge's decision that there had been no indirect discrimination in breach of section 29(6) and the Secretary of State cross-appealed against the finding that there had been a breach of the PSED. By the time of the hearing before the Court of Appeal, a further Policy Equality Statement had been published so the issue of whether there had been a breach of the PSED on the facts had become academic. The Secretary of State, however, pursued the appeal on the issue of whether the PSED has extraterritorial effect. The Court of Appeal dismissed the Appellant's appeal and allowed the cross-appeal. The Appellant has been granted permission to appeal to this court only on the question of the extraterritorial effect of section 149. Permission was refused for any challenge to the finding that there has been no substantive unlawful discrimination against the Appellant.
The Resettlement Scheme is an ex gratia scheme which was launched in January 2014 by a statement in Parliament by the then Home Secretary. The nature of the Scheme is described by the Judge in paras 8 to 12 and 23 to 27 of her judgment. It was designed to provide emergency sanctuary in the UK, outside the Immigration Rules, for displaced refugees who were particularly vulnerable. Priority would be given to survivors of torture and violence, and to women and children at risk or in need of medical care. The Resettlement Scheme provided refugees with a direct and safe route to the UK rather than them having to make the hazardous journey to Europe. Those admitted under the original Resettlement Scheme were granted five years' humanitarian protection. The Resettlement Scheme was operated by relying on the UNHCR to identify and recommend refugees who met the criteria for relocation. The Minister described the “deep and strong working relationship” between the UK and UNHCR built up over many years. That would, she said, allow the best use to be made of the UK's capability to help these refugees.
In its original form, the scheme was open to Syrian nationals only. It was broadened to include non-Syrian nationals in July 2017 and the status conferred on those settled here was changed to refugee status. That status attracted more rights and benefits than humanitarian protection, including easier access to higher education. The Secretary of State announced that up to the end of March 2017, 7,307 Syrians had been resettled in the UK, half of whom were children. The commitment was to resettle 20,000 refugees by 2020.
The Judge also described the Policy Equalities Statement produced by the Secretary of State on 29 June 2017. The Judge assumed this had been prepared as part of the Ministerial submission about the widening of the Resettlement Scheme. She noted that the evidence before the court on behalf of the Secretary of State said that there had been no formal PSED consideration at the time the Resettlement Scheme was introduced because of the speed at which the scheme had to be developed and then rolled out: para 66.
The Appellant put her case on the extraterritorial effect of the PSED in two ways. First, she argues that the whole of section 149 has extraterritorial effect. In this case she relies particularly on section 149(1)(b). Alternatively, she argues that it has extraterritorial effect co-extensively with the extraterritorial effect of the substantive provisions of the EqA 2010. Although the appeal before this court is limited to the extraterritorial effect of the PSED, the substantive provisions relating to unlawful discrimination are relevant for this alternative case. The Appellant relies on the Court of Appeal's decision that section 29(6) had extraterritorial effect to a limited extent to bring the Appellant's claim within its scope although that claim was then dismissed on the facts. The Secretary of State maintains that, even if that is correct, it does not follow from that that the PSED has any extraterritorial effect.
Section 29 of the EqA 2010 provides so far as relevant:
“ 29 Provision of services etc
(1) A person (a ‘service-provider’) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service. …
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. …
(9) In the application of this section, so far as relating to race or religion or belief, to the granting of entry clearance (within the meaning of the Immigration Act 1971), it does not matter whether an act is done within or outside the United Kingdom.
(10) Subsection (9) does not affect the application of any other provision of this Act to conduct outside England and Wales or Scotland.”
Section 31(4) of the EqA 2010 explains that a “public function” for the purposes of section 29(6) is “a function that is a function of a public nature for the purposes of the Human Rights Act 1998”.
Schedule 3 to the EqA 2010, given effect by section 31(10), sets out exceptions from the prohibition on discrimination in section 29. Paragraph 17 of Schedule 3 provides that section 29 does not apply to anything done by a Minister of the Crown acting personally, or by a person acting in accordance with Ministerial authorisation in the exercise of a function under the Immigration Acts. The exception applies only to the application of section 29 in relation to race discrimination so far as relating to nationality, or ethnic or national origins. As Simler LJ noted at para 32 of her judgment in the Court of Appeal in this case, paragraph 17 is the source of the power to make ministerial and class authorisations, the effect of which can be to...
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