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

The public sector equality duty in section 149 of the Equality Act 2010 does not generally require a UK public authority to have due regard to equality needs concerning people or matters outside the United Kingdom. The presumption against extraterritorial effect applies. Clear words or a sufficiently plain implication are required to overcome it.

The duty under section 149(1)(a) is not extraterritorial merely because a substantive prohibition in the Act applies overseas. Equality-related effects abroad may nevertheless be mandatory relevant considerations under ordinary judicial review principles where they are germane to the particular decision.

The appellant was a Palestinian refugee living in Lebanon. Although she met the vulnerability criteria of a UK refugee resettlement scheme, she could not be referred through the UNHCR because Palestinian refugees fell within UNRWA's exclusive remit.

She challenged the scheme under sections 29(6) and 149 of the Equality Act 2010. The High Court rejected the substantive discrimination claim but found a breach of the public sector equality duty. The Court of Appeal, [2021] EWCA Civ 348, dismissed her appeal and allowed the Secretary of State's cross-appeal.

Permission to appeal was confined to whether section 149 applies when the exercise of a UK public body's functions affects people or matters outside the United Kingdom, either generally or to the same extent as the Act's substantive prohibitions.

1. Appeal dismissed. Lady Rose, with whom Lord Reed, Lord Hodge, Lord Burrows and Lord Richards agreed, held that section 149 of the Equality Act 2010 does not generally apply to equality effects upon people or matters outside the United Kingdom.

2. The starting point in construing legislation is the well-established presumption that, unless a contrary intention appears, an enactment does not apply to people and matters outside its territorial extent. The presumption is a rule of statutory construction and is not confined to cases where extraterritorial application would violate another state's sovereignty or cause a particular problem of international comity. An implication can rebut the presumption, but the required threshold is high: paras 25–41.

3. The flexibility inherent in the expression “due regard” did not justify giving section 149 worldwide scope. A duty serving little useful purpose in most overseas cases was less likely to have been intended by Parliament. It would also be inconsistent with the substantive, rigorous and accountable process required by the public sector equality duty to treat overseas compliance as a largely nominal exercise: paras 42–46.

4. The reasoning in R (Hottak) v Secretary of State for the Home Department [2015] EWHC 1953 (Admin) and R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) could not stand. The place where a public authority makes its decision does not determine whose equality needs section 149 protects. Parliament intended the duty to promote societal change within the community for which the relevant UK public bodies are responsible. It did not confer a general right upon persons with no UK connection to challenge policies affecting their position in overseas communities: paras 47–56.

5. Section 149(1)(a) does not acquire an extraterritorial reach co-extensive with section 29(6). Section 29(9) extended the substantive prohibition only to stages integral to granting or refusing entry clearance. It did not cover the earlier adoption, under prerogative powers, of the resettlement policy challenged in these proceedings. The public sector equality duty is primarily directed to policy decisions, while the Act's substantive duties regulate discrimination against individuals during the entry-clearance process: paras 58–66.

6. Equality-related consequences abroad may still be so germane to a particular policy or decision that ordinary judicial review principles require the public body to consider them. That possibility does not extend section 149 itself beyond the United Kingdom: para 57.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The court upheld the conclusion that section 149 of the Equality Act 2010 did not have the asserted extraterritorial effect: [2023] UKSC 23.
2. Court of Appeal: The appellant's appeal on substantive discrimination was dismissed and the Secretary of State's cross-appeal on the public sector equality duty was allowed: [2021] EWCA Civ 348.
3. High Court: Elisabeth Laing J rejected the section 29(6) discrimination claim but, considering herself bound by Divisional Court authority, held that section 149 applied extraterritorially and had been breached. No citation is stated in the judgment.