Turani & Ors v Secretary of State for the Home Department

Part 3 of the Equality Act 2010 has no general extra-territorial effect. Its application depends on a sufficiently strong connection with the United Kingdom, subject to express statutory exceptions. The same territorial approach applies to the public sector equality duty in section 149.

Indirect discrimination may nevertheless be justified where a public resettlement scheme uses a specialist international organisation as its sole referral gateway, and that arrangement is rationally connected to speed, security, reliability and consistency. Section 149 requires the decision-maker to confront obvious equality impacts and make reasonable inquiries. A policy may be unlawful where the equality of opportunity offered to a protected group is theoretical rather than real.

The claimants were Palestine Refugees from Syria who challenged the Vulnerable Persons Resettlement Scheme. The Scheme relied exclusively on referrals by the United Nations High Commissioner for Refugees. The claimants contended that, because their position fell principally within the mandate of the United Nations Relief and Works Agency, they were in practice excluded from the Scheme.

They alleged indirect race discrimination under sections 19 and 29(6) of the Equality Act 2010, breach of the public sector equality duty under section 149, and unlawfulness at common law. The central questions were the territorial reach of those provisions, whether the referral arrangement was justified, and whether the Secretary of State had properly considered its effect on Palestine Refugees from Syria.

1. Territorial reach. Section 29(6) did not apply to the claimants’ complaint. Section 29(10) preserved the ordinary presumption against extra-territorial operation, subject only to express statutory exceptions. The approach in Hottak v Secretary of State for Foreign and Commonwealth Affairs was binding or, in any event, strongly persuasive. The claimants had no sufficiently exceptional connection with the United Kingdom. Sections 29(9) and the related authorisation applied to the grant of entry clearance, not to the exercise of common-law powers used to establish the Scheme.
2. Indirect discrimination. The exclusive referral arrangement was a provision, criterion or practice which placed Palestine Refugees from Syria at a particular disadvantage. The disadvantage arose because the mandates of UNHCR and UNRWA were mutually exclusive and UNRWA applied more stringent criteria before referring a person to UNHCR. Nevertheless, the arrangement was a proportionate means of achieving the legitimate aim of identifying vulnerable refugees for United Kingdom resettlement quickly, securely, reliably and consistently. UNHCR’s expertise, regional presence and established relationship with the Government were material. Direct applications, embassy referrals and referrals through unidentified NGOs would not achieve the same objectives without unacceptable compromise.
3. Section 149. The court was bound by Hottak and Hoareau v Secretary of State for Foreign and Commonwealth Affairs to hold that section 149 had extra-territorial effect. Section 149(1)(a) and (c) were not materially engaged on the facts. Section 149(1)(b), however, required the Secretary of State to confront the fact that widening the Scheme did not materially increase equality of opportunity for Palestine Refugees from Syria. The evidence showed no adequate consideration of the exclusive mandates, no reasonable inquiry into their consequences, and no revision of the equality statement. Meetings with UNHCR and UNRWA were insufficient.
4. Common law. The court doubted that there was a freestanding common-law principle of equality adding anything to the statutory scheme. The rationality challenge failed because the referral arrangement was integral to, rather than frustrated, the Scheme’s purpose.
5. The judicial review claim therefore failed except on the section 149(1)(b) ground. Consequential matters were left for written submissions.

First-instance judicial review in the Administrative Court. Permission was granted by Stuart-Smith J on 1 December 2017. The claim was determined by Mrs Justice Elisabeth Laing on 26 June 2019.