Turani & Ors v Secretary of State for the Home Department

This judicial review concerned the territorial reach and application of the Equality Act 2010 to the Vulnerable Persons Resettlement Scheme (the Scheme) and whether the Scheme indirectly discriminated against Palestine Refugees from Syria (PRS) by using the United Nations High Commissioner for Refugees (UNHCR) as the exclusive referral gatekeeper. The court held that section 29(6) of the Equality Act 2010 does not, in general, have extra-territorial effect and so an indirect discrimination claim under section 19 read with section 29(6) could not succeed on that territorial basis. The court nevertheless analysed justification and found the use of UNHCR as gatekeeper to be rationally connected and proportionate to the legitimate aim of rapidly and reliably identifying the most vulnerable refugees for resettlement.

However, the court concluded that section 149(1)(b) (the public sector equality duty to advance equality of opportunity) did have extra-territorial effect for present purposes and that there was insufficient evidence the Secretary of State had given due regard to the specific impact of the widened Scheme on PRS. The claim therefore succeeded only on the narrow public sector equality duty ground: the Secretary of State had failed to have due regard to the need to advance equality of opportunity for PRS when widening the Scheme.

Background and parties

• The claimants are Palestine Refugees from Syria (PRS). They brought judicial review challenging the Vulnerable Persons Resettlement Scheme operated by the Home Office.
• They alleged discrimination contrary to the Equality Act 2010 (direct and indirect), breach of the public sector equality duty (PSED) under section 149, and unlawfulness at common law and for failure to give reasons.

Procedural posture

Permission to apply for judicial review was granted. There were contested interlocutory applications including for expert evidence and expanded witness statements; the court refused expert evidence and received contested factual material. The Secretary of State amended and widened the Scheme during the proceedings, and correspondence between the parties and with UNRWA/UNHCR formed part of the evidential matrix.

Key issues

1. Whether sections 29(6) and 149 of the Equality Act 2010 reach acts done outside the United Kingdom.
2. Whether the Scheme indirectly discriminated on racial grounds because all referrals must come exclusively from UNHCR (the provision, criterion or practice (PCP)).
3. Whether the Secretary of State complied with the PSED in section 149 when widening the Scheme.
4. Whether the Scheme was unlawful at common law or irrational as implemented.

Court’s reasoning

• Territorial reach: The court followed the reasoning in Hottak and related authorities about territorial limits and concluded section 29(6) does not, as a general matter, extend extraterritorially to cover the Scheme’s exercise outside the United Kingdom. The court considered the domestic authorities about extra-territorial application and rejected an argument that race-based protections enjoyed a broader extra-territorial reach.
• Indirect discrimination: The PCP was identified as exclusive reliance on UNHCR referrals. The court accepted the mutually exclusive mandates of UNHCR and UNRWA and accepted that in practice PRS face greater difficulty reaching the UNHCR gate. Despite that, on the facts and applying the proportionality/justification analysis, the court found the Secretary of State’s reliance on UNHCR was rationally connected to legitimate aims (efficient, consistent and secure identification of the most vulnerable) and proportionate given the need for speed, security checks and UNHCR’s operational capacity. Hence justification succeeded on the merits, although the court emphasised the territorial bar meant the section 29 claim cannot succeed.
• Public sector equality duty: The court (following binding authority on scope) treated section 149 as capable of extra-territorial effect and held that the Secretary of State had not demonstrated she had given due regard under section 149(1)(b) to the specific disadvantage for PRS when widening the Scheme. There was no contemporaneous evidence that the exclusive mandates issue had been investigated and confronted in the required way, and the Policy/Equality Statement did not address the point.
• Common law: The court doubted there is a free-standing common law principle of equality that adds to the statutory scheme and in any event found no irrationality or failure of the Scheme’s purpose such as to render it unlawful.

Relief

The claim failed on all grounds except that the Secretary of State did not have due regard to section 149(1)(b); the court indicated further submissions on remedy and consequential issues would be invited in writing.

The claim was allowed in part. The court dismissed the indirect discrimination and other statutory and common law challenges but held that the Secretary of State had failed to comply with the public sector equality duty in section 149(1)(b) of the Equality Act 2010 when widening the Scheme because there was no evidence that due regard had been given to the particular disadvantage to Palestine Refugees from Syria arising from the exclusive use of UNHCR as the referral gatekeeper.