Turani & Anor v Secretary of State for the Home Department

Where a resettlement scheme operates by granting entry clearance, a rule which is an absolute precondition to an individual obtaining entry clearance is integral to the entry-clearance decision. The prohibition in section 29(6), read with section 29(9), of the Equality Act 2010 can therefore apply to that rule despite the individual being outside the United Kingdom.

Indirect discrimination caused by an exclusive referral mechanism may nevertheless be justified where it enables an urgent, limited humanitarian scheme to use the expertise, security checks, reliability and comparative assessments of a trusted referral agency, and no equally effective less intrusive alternative is established. The public sector equality duty in section 149(1)(b) does not require a public authority, when formulating policy, to advance equality of opportunity for persons outside the United Kingdom with no relevant connection to it.

The appellants were Palestinian refugees from Syria living in Lebanon. They were eligible by vulnerability criteria for the Vulnerable Persons Resettlement Scheme, but were in practice unable to be referred because UNHCR was the Scheme’s sole referral agency and its mandate excluded Palestinian refugees registered with UNRWA. UNRWA had no general resettlement mandate.

Elisabeth Laing J dismissed their claim of indirect race discrimination and irrationality, holding that section 29(6) of the Equality Act 2010 had no relevant extraterritorial effect and that the exclusive UNHCR referral rule was justified. She held, subject to a cross-appeal, that the public sector equality duty applied and had been breached: [2019] EWHC 1586 (Admin).

The appeal concerned territorial scope, justification, rationality, and whether section 149(1)(b) imposed an extraterritorial equality duty.

1. Appeal dismissed; cross-appeal allowed. Simler LJ, with whom Warby LJ and Underhill LJ agreed, held that section 29(6) of the Equality Act 2010 applied to the application of the Scheme’s rules to the appellants’ individual cases.

   The Scheme itself was made under prerogative powers and was not a grant of entry clearance. But the UNHCR-referral requirement was an absolute precondition to obtaining entry clearance under the special route. It was therefore integral to the resulting entry-clearance decision. Section 29(9) extended the statutory prohibition to that decision, including its refusal or an equivalent exclusion from consideration, although the appellants were outside the United Kingdom.

2. The exclusive-referral PCP indirectly disadvantaged Palestinian refugees from Syria. It was, however, a proportionate means of achieving the legitimate aim of providing urgent and effective resettlement to a limited number of particularly vulnerable refugees. UNHCR had exceptional expertise, regional capacity, comparative information, and the Government’s trust to conduct assessments, security checks and screening. The evidence permitted the judge to find that self-referral or NGO referral would not provide equivalent security, reliability, speed or consistency without serious resource and timing consequences.

   The near-total exclusion of Palestinian refugees was severe and had to be weighed. UNRWA did not provide a comparable resettlement route, but its humanitarian assistance had limited relevance in the overall balance. The first-instance conclusion on proportionality was open to the judge. The common-law irrationality ground therefore also failed.

3. The court allowed the Secretary of State’s cross-appeal on section 149(1)(b). The public sector equality duty is procedural, but its territorial scope remains a question of statutory construction. Nothing in the Act showed that Parliament intended a duty to advance equality of opportunity for persons outside the United Kingdom, where the public authority would ordinarily have no real capacity to influence equality, public participation, prejudice or understanding. Earlier Divisional Court decisions to the contrary were not correct.

4. The claim for judicial review was dismissed.

• Court of Appeal (Civil Division): The appellants’ appeal was dismissed and the Secretary of State’s cross-appeal was allowed. The judicial review claim was dismissed: [2021] EWCA Civ 348.
• High Court, Administrative Court: Elisabeth Laing J dismissed the indirect-discrimination and rationality challenges, but held that section 149(1)(b) of the Equality Act 2010 applied and had been breached: [2019] EWHC 1586 (Admin).