Saleh Mohammad Turani v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 26 June 2019 |
| Neutral Citation | [2019] EWHC 1586 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/707/2017 |
| Date | 26 June 2019 |
[2019] EWHC 1586 (Admin)
Mrs Justice Elisabeth Laing
Case No: CO/707/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Raza Husain QC, Miss Blinne Ní Ghrálaigh AND Miss Julianne Kerr (instructed by LEIGH DAY SOLICITORS) for the Claimants
Mr Jonathan Hall QC AND Mr David Blundell (instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Hearing dates: 8 & 9 May 2019
Approved Judgment
Introduction
This is an application for judicial review by the Claimants. Permission to apply for judicial review was given by Stewart-Smith J on 1 December 2017. The Claimants are Palestine Refugees from Syria (‘PRS’). They challenge the Vulnerable Persons Resettlement Scheme (‘the Scheme’).
The Claimants were represented by Raza Husain QC, Blinne Ní Ghrálaigh and Julianne Kerr Morrison. The Defendant (‘the Secretary of State’) was represented by Jonathan Hall QC and David Blundell. I thank counsel for their written and oral arguments.
The issues
There are four issues.
i) What is the territorial reach of sections 29(6) and 149 of the Equality Act 2010 (‘the 2010 Act’)?
ii) If section 29(6) applies outside the United Kingdom, does the Scheme unjustifiably discriminate indirectly against the Claimants on the grounds of their race, contrary to section 19 of the 2010 Act, read with section 29(6)?
iii) If section 149 of the 2010 Act applies outside the United Kingdom, has the Secretary of State complied with section 149?
iv) Is the Scheme unlawful at common law?
Procedural points
Much of the first morning of the hearing was occupied by an application by Mr Husain to adduce evidence which, he accepted, was expert evidence, and by a debate about the pleadings. I refused his application to rely on expert evidence for reasons which I gave at the time.
The background to the debate about the pleadings is that after this claim was brought, the Secretary of State amended the terms of the Scheme. In short, the Secretary of State contended that that change made the claim academic. The Claimants did not accept that, as they made clear in their Reply dated 9 October 2017. They now contend that the Scheme, as amended, discriminates indirectly against them on the grounds of their race. There has been much correspondence as the Claimants have tried (with varying degrees of success) to find out information from the Secretary of State (including an application under CPR Part 18).
Despite invitations by the Secretary of State to amend their grounds of claim, the Claimants did not do so, although I do not consider that, despite the space devoted to this issue in the Secretary of State's skeleton argument, the Secretary of State has been significantly prejudiced by this. The main issues are (with one exception) clear from the Reply, as the Secretary of State appeared to accept in a letter dated 3 April 2019. The exception is that the Claimants have not expressly defined an essential component of their indirect discrimination claim. That is, the provision, criterion or practice (‘PCP’) on which they rely. Mr Hall candidly accepted that he knew what the PCP was, but, not unreasonably, wanted Mr Husain to commit it to writing.
I resolved the debate about the pleadings by asking Mr Husain to produce a formal document in which he described the PCP. He also helpfully agreed to describe the less intrusive means which he submitted, as part of his case on discrimination, the Secretary of State could have used instead of the PCP. The PCP is that all referrals under the Scheme are to be made exclusively to the United Nations High Commissioner for Refugees (‘UNHCR’). The less intrusive means ‘c/would include (1) self-referral to the local British Embassy or to the Home Office directly and (2) referral by one of the non-governmental organisations (‘NGOs’) active in the region’.
Background
The Scheme was launched on 29 January 2014 by an oral statement to Parliament by the then Secretary of State. At first the Scheme applied only to Syrian nationals. The statement is set out in full in the Defendant's skeleton argument. I will summarise the main points in the statement. The Secretary of State described the ‘staggering’ number of people affected, and the ‘immense’ scale of the refugee crisis. She pointed out that the United Kingdom was the second largest bilateral donor. She then described the material help which the United Kingdom was providing on the ground. She said that the greatest need was in the region and that that was where the United Kingdom could make the biggest impact. She referred to a ‘proud tradition’ of protecting those in need, and said that the United Kingdom was ‘ready to look at’ cases ‘where there are particularly vulnerable refugees who are at grave risk’. After consultations with UNHCR, the Government was launching a programme to give ‘emergency sanctuary’ to ‘displaced Syrians who are particularly vulnerable’.
The Scheme would be based on three principles.
i) Help should be targeted where it could have ‘the most impact on the refugees at the greatest risk’, where evacuation was the only option. Priority would be given to survivors of torture and violence, women and children at risk or in need of medical care ‘who are recommended to us for relocation by UNHCR’. She gave, as an example, victims of sexual violence.
ii) The Scheme would be run in addition to two other resettlement schemes which the Government ran ‘in partnership with UNHCR’, the Vulnerable Children Resettlement Scheme (‘the VCRS’), and the Mandate Resettlement Scheme.
iii) Because the Government wanted to help the most vulnerable people, there would be no quota. The Government would work ‘in close consultation’ with UNHCR's offices in London, Geneva and the region. The Government had a ‘deep and strong working relationship with UNHCR built up over many years.’ £61m of the United Kingdom humanitarian help to Syria was being given through UNHCR programmes. ‘Our approach is entirely consistent with the wider UNHCR programme, is supported by them and will allow us the control to make the best use of our capability to help these cases’.
On 13 March 2014, a Minister of State in the Home Office signed a document headed ‘Equality Act 2010 Paragraph 17(4) of Schedule 3 to the Equality Act 2010 Ministerial Authorisation Equality (Syria – Entry Clearance outside the immigration rules Authorisation 2014 (‘the Authorisation’). The Minister authorised the grant of entry clearance outside the immigration rules to Syrian nationals under the Scheme.
A written ministerial statement was made on 25 March 2014. This said, among other things:
‘We have launched [the Scheme] to provide protection in this country to particularly vulnerable refugees who are at grave risk. Since that point, we have been working closely with the United Nations High Commissioner for Refugees (UNHCR) to identify those who are most vulnerable.
…we expect the first group of Syrians to arrive as part of [the Scheme] today, just eight weeks after the Home Secretary's announcement. During this time, we have been working in close collaboration with UNHCR, the International Organisation for Migration and local authority services to ensure that the particular needs of the beneficiaries, with their extreme vulnerabilities, will be met. Given the absolute primacy of safeguarding the UK's security, appropriate checks have also been conducted before bringing Syrians displaced by the conflict to the UK. We expect the next arrivals in April.
…We believe that the VPR scheme will make a real difference to the lives of some of the most vulnerable Syrians displaced by the conflict by giving them protection and support in the UK.
I have agreed a ministerial authorisation (Equality (Syria – Entry clearance outside the immigration rules) Authorisation 2014) to allow differentiation in favour of Syrian nationals whom we want to bring to the UK under the VPR scheme’.
The Scheme was widened somewhat in September 2015. At that stage, it was anticipated that 20,000 refugees would be resettled by 2020; a modest target when compared with the very large number of displaced people.
The Claimants' solicitors, Leigh Day (‘LD’) sent a pre-action protocol letter to the Secretary of State on 22 November 2016. In its response to that letter, the Government Legal Service (‘GLD’) suggested that the Claimants could apply for resettlement under the VCRS, applications for which were determined by UNHCR. GLD suggested that it was up to the Claimants to approach UNHCR (letter of 22 November 2016).
On 6 January 2017 the Claimants brought this claim. They argued that the Scheme discriminated against them directly on grounds of race, that the Secretary of State had not complied with section 149 of the 2010 Act, and that the Scheme was irrational and unlawful because no reasons had been given for it. There was, at that stage, no reason for the pre-action protocol letter, or the grounds of claim, to refer to the mutually exclusive mandates of the United Nations Works and Relief Agency (‘UNRWA’) and of UNHCR and they did not do so.
The Secretary of State lodged her summary grounds of defence two working days before the announcement that the Scheme was to be widened (Claimants' Reply, paragraph 1.b). I say more about that announcement below. The Secretary of State submitted that the Authorisation was an answer to the claim under the 2010 Act. The Scheme was set up under common law powers, but was operated by the grant of entry clearance. It was artificial to separate the establishment of the Scheme from the decision to grant entry clearance (paragraph 30).
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