R (Turani) v Secretary of State for the Home Department

The Court of Appeal dismissed the appellants' challenge to the United Kingdom's Vulnerable Persons Resettlement Scheme (and its successor the UK Resettlement Scheme). The court held that the exclusion of Palestinian refugees from Syria (PRS) from effective access to the Scheme, caused by the respondent's exclusive reliance on UNHCR referrals and the separate UNRWA mandate, engaged the Equality Act 2010 regime but was nonetheless justifiable in the particular operational circumstances of the Scheme.

Key legal principles: the territorial scope of section 29(6) of the Equality Act 2010 was held to extend to the application of the Scheme's referral requirement to individual cases by reason of section 29(9)'s focus on entry clearance, so that a policy-formatted precondition to entry clearance can be caught by the Act; justification requires a proportionality assessment and here the court accepted that reliance on UNHCR as sole gatekeeper was proportionate given the need for speed, security and UNHCR's operational capacity; the common law irrationality challenge likewise failed. Conversely, the court allowed the respondent's cross-appeal on the public sector equality duty (section 149(1)(b) EA 2010), holding that section 149(1)(b) does not have the extraterritorial reach contended for by the appellants in relation to the making of the Scheme.

Background and parties: The appellants are Palestinian refugees who fled Syria to Lebanon and sought to be considered for resettlement to the United Kingdom under the Vulnerable Persons Resettlement Scheme (VPRS) and the subsequent UK Resettlement Scheme. They challenged the respondent Secretary of State for the Home Department by way of judicial review.

Nature of the claim and relief sought: The claim alleged that the respondent's reliance on the United Nations High Commissioner for Refugees (UNHCR) as the exclusive referral agency for the Scheme had the effect of indirectly discriminating against Palestinians in breach of section 29(6) of the Equality Act 2010 and that the respondent breached the public sector equality duty (PSED), section 149(1) EA 2010, when designing and widening the Scheme. The appellants also advanced a common law irrationality challenge to the exclusive referral mechanism.

Procedural posture: The appeal came from Elisabeth Laing J’s judgment in the Administrative Court, reported at [2019] EWHC 1586 (Admin). The Court of Appeal heard argument and reserved judgment, delivering a joint judgment (Simler, Underhill and Warby LJJ).

Issues framed by the court:

• Whether section 29(6) EA 2010 has territorial effect so as to cover the Scheme's operation to persons outside the United Kingdom;
• If so, whether the PCP of exclusive UNHCR referral amounted to unlawful indirect discrimination or was justified as a proportionate means of achieving a legitimate aim;
• Whether the referral arrangement was irrational at common law;
• Whether section 149(1)(b) EA 2010 (the PSED duty to advance equality of opportunity) applies extraterritorially to the making of the Scheme.

Court’s reasoning and outcome on issues: The court concluded that the referral requirement was an integral precondition to the grant of entry clearance under the Scheme and so, read with section 29(9) EA 2010, the substantive non-discrimination prohibition in section 29(6) could apply to the exclusion of the appellants despite their residence outside the United Kingdom. On justification, the court accepted the Secretary of State’s evidence that the Scheme aimed to resettle the most vulnerable people quickly and that UNHCR's unique operational capacity, expertise and reliability made exclusive reliance on it a proportionate means, given the exigencies and scale of the crisis. The common law irrationality challenge therefore failed. On the PSED, the court held that section 149(1)(b) was not intended to require public authorities to have due regard to advancing equality of opportunity for persons outside the United Kingdom in circumstances where the authority has no effective sphere of operation; the respondent’s cross-appeal on extraterritoriality of section 149(1)(b) succeeded.

Procedural and factual notes: the judgment reviews the interplay between UNHCR and UNRWA mandates and records that, in practice, PRS registered with UNRWA have been largely unable to access UK resettlement via UNHCR referrals. The court nonetheless found that this practical exclusion did not render the Scheme unlawful in the circumstances.

The appellants' appeal was dismissed and the respondent's cross-appeal was allowed. The court held that section 29(6) EA 2010 can apply extraterritorially to the application of the Scheme's referral precondition to individual cases by reason of section 29(9)'s linkage to entry clearance, but that the exclusive UNHCR referral requirement was an objectively justified, proportionate means of achieving the Scheme's legitimate aim given UNHCR's operational capacity, the need for speed and security considerations. The common law irrationality challenge failed. The cross-appeal succeeded on section 149(1)(b) EA 2010: the public sector equality duty does not have the extraterritorial reach contended for in respect of the making of the Scheme.

Appeal from the Administrative Court (Queen's Bench Division), Elisabeth Laing J, [2019] EWHC 1586 (Admin); determined in the Court of Appeal, [2021] EWCA Civ 348.