The Queen (on the application of HNA) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jacobs |
| Judgment Date | 26 July 2021 |
| Neutral Citation | [2021] EWHC 2100 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1072/2020 |
[2021] EWHC 2100 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jacobs
Case No: CO/1072/2020
Ramby de Mello and Paul Diamond (instructed by J M Wilson Solicitors) for the Claimant
David Blundell QC and Julia Smyth (instructed by Government Legal Department) for the Defendant
Hearing date: 15 th July 2021
Approved Judgment
A: Introduction
The Claimant is a Syrian national who left Syria in 2013 as a result of the civil war in that country. In 2014, he travelled to Jordan with his wife and three children. He and his wife were born into Muslim families, but in 2015 they converted to Christianity. Prior to that time, he had registered with the United Nations High Commissioner for Refugees which is commonly known as the UNHCR. The UNHCR is a United Nations agency mandated to aid and protect refugees. It has been in existence for around 70 years and has staff working in many countries, including the neighbouring countries where very large numbers of Syrian nationals have arrived as refugees in recent years.
The Vulnerable Persons Resettlement Scheme (the “Scheme”) is an ex gratia scheme which was put in place, initially in January 2014, by the Defendant (“SSHD”) in order to support and assist third-country national refugees outside the United Kingdom who had fled the conflict in Syria. The background to the Scheme is described in some detail in the judgments of Elisabeth Laing J and the Court of Appeal in Turani and others v SSHD (“Turani”): [2019] EWHC 1586 (Admin) and [2021] EWCA Civ 348. It is not necessary to repeat that detail in this judgment. A critical feature of the scheme is that it involves the UNHCR as the exclusive body with responsibility for referring refugees to the UK authorities for possible admission under the Scheme.
In Turani, a challenge to the lawfulness of the scheme was made by a number of Palestinian refugees from Syria (or “PRS” as they were described in the judgments) on the basis of a number of arguments. A central issue was whether the SSHD was in breach of section 29 (6) of the Equality Act 2010 (“ EA 2010”) on the grounds of indirect discrimination against PRS. That discrimination arose from the fact that PRS were in practical terms excluded from the Scheme. This was because the UNHCR's mandate did not extend to those individuals, since there was another United Nations agency, the United Nations Relief Works and Agency (“UNRWA”) which had responsibility for Palestinians. The challenge in that case was primarily directed to the decision of the SSHD to rely exclusively on the UNHCR, and the failure to put in place any alternative mechanism to enable PRS to be referred.
The challenge was ultimately unsuccessful before both Elisabeth Laing J and the Court of Appeal. In broad summary, both courts were satisfied that the practical exclusion of PRS from the Scheme constituted indirect discrimination, with the Court of Appeal deciding that there was no territorial limitation which precluded a claim for such discrimination under the EA 2010. However, both courts were also satisfied that the indirect discrimination which resulted from the use of the UNHCR as the exclusive gatekeeper to the Scheme, thereby excluding PRS, had been shown to be justified by the SSHD as a “proportionate means of achieving a legitimate aim”: see EA 2010 s 19 (2) (d).
The present case includes a challenge to the same Scheme. The Claimant seeks a declaration that the SSHD has breached section 29 of the EA 2010, in directly discriminating or indirectly discriminating against the Claimant. The Claimant also seeks a mandatory order for the introduction into the Scheme – including into the new scheme that was (at the time of commencement of the proceedings) about to replace it – of “criteria for settlement in the United Kingdom premised on religion; and to reserve any remaining places on the [Scheme] for those who are members of religious minorities”.
The complaint which underlies the Claimant's grounds of challenge is, fundamentally, that the Scheme is operated so as to discriminate unlawfully, on grounds of religious belief, against religious minorities, and, in particular, Christians.
Permission to apply for judicial review, originally advanced on the basis of four grounds, was refused on the papers. On the renewed application, permission was refused by Morris J in relation to two of the four grounds of challenge. He ordered that the remaining two grounds should be the subject of a rolled-up hearing: i.e. a hearing where the court determines whether the claimants should have permission to apply for judicial review and if it determines they should, goes on to consider and determine the judicial review. The case was, however, stayed pending the judgment of the Court of Appeal in Turani. As a result of that decision, the Claimant decided not to pursue one of the two remaining grounds, based upon breach of the Public Sector Equality Duty (“PSED”). The decision of the Court of Appeal in Turani had made the Claimant's PSED argument unsustainable, The Claimant maintained, however, that some of the facts relied upon in support of the PSED case were material to the remaining ground, namely discrimination. The decision of the Court of Appeal in Turani had, to some extent, been favourable to the Claimant in relation to the discrimination case, since the court rejected a territorial argument of the SSHD which had succeeded before Elisabeth Laing J.
Shortly before the rolled-up hearing in the present case was due to take place, the Claimant sought to add additional grounds for judicial review. Mr. de Mello, who appeared for the Claimant, recognised that permission to rely upon these additional grounds was required. Save in relation to one point, I rejected the application to add further grounds, in light of: the late stage at which permission to amend was sought; the fact that the SSHD had not had a proper opportunity to adduce evidence responsive to the new points; and the important background of a case management order of Morris J, whose purpose was to ensure that the issues were identified, and relevant evidence served, well in advance of the hearing. Mr. Blundell QC accepted, however, that he was in a position to deal with an argument based on irrationality, because this was very closely related to, if not substantially the same as, the discrimination claim.
The decision in Turani was referred to by both sides, in particular the SSHD, and (as described above) the present proceedings were previously stayed pending the result in that case. It is sensible to explain the differences and potential similarities between the case on discrimination now advanced and that which was unsuccessfully advanced in Turani. This also serves to identify the parties' principal arguments in that regard and to introduce the parties' principal arguments in the case.
First, in Turani, the claimants' case was advanced on the basis of indirect discrimination, resulting from their practical exclusion from the Scheme as a result of the respective mandates of UNHCR and UNRWA. The Claimant in the present case does not, and cannot, allege there was practical exclusion akin to the situation in Turani. The Scheme is unquestionably available to individuals in the position of the Claimant. The statistical evidence, discussed in more detail below, shows that refugees from Christian and other minorities have been resettled under the Scheme. However, the Claimant contends that it is in practice far more difficult for him as a Christian, and in particular a Christian who has converted from being a Muslim, to access the Scheme. The Claimant relied (as in Turani) upon the fact that the UNHCR was the exclusive gatekeeper for potential refugees who might be accepted by the UK authorities under the Scheme. In the present case, however, the Claimant's case focused upon the manner in which UNHCR carried out its role as gatekeeper. This involved requiring the Claimant, and people like him, to attend for interviews with UNHCR. The attendance of the Claimant, and minorities such as Christians (and in particular Christian converts) was, on the Claimant's case, difficult if not impossible: because the UNHCR personnel were themselves Muslim, and they displayed hostility to Christians which, on the Claimant's case, is endemic amongst Muslims in many Arab countries including Jordan
Secondly, in Turani, the case was advanced on the basis only of indirect discrimination. In the present case, the Claimant also advances a case of direct discrimination. This was based primarily upon the Claimant's particular experience when he went to a UNHCR refugee camp in October 2018 for an interview which might lead to his being referred by the UNHCR under the Scheme. He alleges that he was there subject to hostility, from the local UNHCR personnel, based upon his religion as a Christian. This was direct discrimination for which the SSHD was liable, either because the UNHCR personnel were acting as agents of the SSHD, or on the basis of vicarious liability under English common law.
Third, the Claimant in the present case relies, in support of his judicial review claim, upon his rights the European Convention on Human Rights (“ECHR”), and in particular Article 14 thereof which relates to discrimination. That case was, in oral argument, pursued only in relation to the indirect discrimination aspect of the case, for reasons which will become apparent. The claimants in Turani do not appear to have advanced an Article 14 argument.
Fourth, the SSHD relies upon the decision in Turani whereby the Court of Appeal upheld the decision of Elisabeth Laing J...
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