R (on the application of Marouf) v Secretary of State for the Home Department

The Supreme Court considered whether the public sector equality duty (PSED) in section 149 of the Equality Act 2010 has extraterritorial effect so as to require UK public authorities to have due regard to the need to advance equality of opportunity for persons outside the United Kingdom. The claimant, a Palestinian refugee in Lebanon, challenged the Resettlement Scheme which relies on UNHCR referrals and in practice excludes Palestinian refugees within UNRWA’s remit. The court applied the well‑established presumption that United Kingdom legislation is territorial in effect unless Parliament’s intention to the contrary appears, and concluded that Parliament had not overridden that presumption in relation to section 149.

The court distinguished between (i) the substantive prohibitions on discrimination (for example section 29(6)) which may have a limited extraterritorial application to particular decisions closely connected to the grant of entry clearance, and (ii) the PSED, which is principally a domestic duty of process directed at policy making and public accountability within the United Kingdom. The PSED was therefore held not to require public authorities to have due regard to the needs listed in section 149 in respect of persons merely because they are affected by a UK policy or decision overseas.

Background and parties. The appellant is a Palestinian woman living in Lebanon who seeks resettlement to the United Kingdom under the Government’s Vulnerable Persons Resettlement Scheme. The Secretary of State operates the Scheme by relying on UNHCR to identify and refer refugees; Palestinian refugees in the region fall within UNRWA’s exclusive remit and so were, in practice, excluded from the Scheme. The appellant brought judicial review proceedings seeking to challenge the lawfulness of the Scheme on grounds of indirect discrimination (Equality Act 2010 section 29(6)) and failure to comply with the PSED (section 149).

Procedural history. At first instance Elisabeth Laing J held that section 29(6) did not have the extraterritorial effect relied on by the appellant (and in any event any discrimination was justified) but concluded she was bound by earlier decisions to hold that the PSED did have extraterritorial effect and that the Secretary of State had breached section 149(1)(b) on the facts. The Court of Appeal ([2021] EWCA Civ 348) dismissed the appellant’s appeal on discrimination but allowed the Secretary of State’s cross‑appeal on the extraterritorial effect of the PSED. The Supreme Court heard a further appeal limited to the question whether section 149 has extraterritorial effect.

Relief sought and issues. The appellant sought relief by way of judicial review challenging the Secretary of State’s adoption and operation of the Resettlement Scheme on the grounds of unlawful discrimination and breach of the PSED. The Supreme Court was asked to decide (i) whether section 149 has extraterritorial effect generally, and alternatively (ii) whether any extraterritorial effect is co‑extensive with the limited extraterritorial effect of the substantive nondiscrimination provisions (in particular section 29).

Court’s reasoning and outcome. The court emphasised the presumption against extraterritoriality and reviewed authorities on statutory construction. It rejected the submission that that presumption only arises where extraterritorial effect would offend comity or sovereignty, holding instead that the presumption is a well‑established starting point and that the appellant bore the burden of rebuttal. The court concluded there is nothing in the Equality Act 2010 that indicates Parliament intended the PSED to apply generally to persons overseas; the PSED’s aims are principally domestic (to effect societal change within the UK and to provide public accountability). The court therefore held that section 149 does not have extraterritorial effect in the general terms advanced by the appellant and dismissed the appeal.

Subsidiary findings and context. The judgment confirmed that there may be circumstances in which consideration of equality‑related factors relevant to persons overseas will be material to the lawfulness of a particular UK decision under ordinary judicial review principles, but that this is distinct from reading a general extraterritorial PSED into section 149. The court also explained that limited extraterritorial effect can apply to substantive duties (for example where a refusal is sufficiently integral to a grant of entry clearance) but that it would be incoherent to read the PSED as having the subtle, partial extraterritorial scope contended for.

Appeal dismissed. The Supreme Court held that section 149 of the Equality Act 2010 does not have the broad extraterritorial effect for which the appellant contended. Applying the presumption against extraterritoriality, and having regard to the statutory purpose and structure, the court concluded Parliament had not intended public authorities to have a general duty under section 149 to have due regard to the listed equality needs in respect of persons merely because they are affected overseas by UK policies. The court distinguished limited extraterritorial application of substantive nondiscrimination provisions from the PSED and rejected the alternative submission that section 149(1)(a) is co‑extensive with the extraterritorial reach of section 29(6).

First instance: Administrative Court (Elisabeth Laing J) (judgment at first instance described in the report). Court of Appeal: [2021] EWCA Civ 348 (appeal dismissed; cross‑appeal allowed on PSED extraterritoriality). Supreme Court: [2023] UKSC 23 (appeal limited to the extraterritorial effect of section 149). Permission to appeal was limited to the extraterritoriality issue; other challenges were refused.