Equality Act 2010, Schedule 18, paragraph 2

Immigration

SCHEDULE 18 Public sector equality duty: exceptions

2 (1) In relation to the exercise of immigration and nationality functions, section 149 has effect as if subsection (1)(b) did not apply to the protected characteristics of age, race or religion or belief; but for that purpose “race” means race so far as relating to—

(a) nationality, or

(b) ethnic or national origins.

(2) “Immigration and nationality functions” means functions exercisable by virtue of—

(a) the Immigration Acts (excluding sections 28A to 28K of the Immigration Act 1971 so far as they relate to criminal offences),

(b) the British Nationality Act 1981,

(c) the British Nationality (Falkland Islands) Act 1983,

(d) the British Nationality (Hong Kong) Act 1990,

(e) the Hong Kong (War Wives and Widows) Act 1996,

(f) the British Nationality (Hong Kong) Act 1997,

(g) the Special Immigration Appeals Commission Act 1997, or

(h) [F372 anything which forms part of [F373 assimilated law and was made under section 2(2) of, or paragraph 1A of Schedule 2 to, the European Communities Act 1972 or forms part of assimilated law by virtue of section 3F373] of the European Union (Withdrawal) Act 2018 and [F374 (in either case)F374,F372]] relates to the subject matter of an enactment within paragraphs (a) to (g).

Definitions used in Schedule 18, paragraph 2 1

enactment

“enactment” means an enactment contained in—

(a)

an Act of Parliament,

(b)

an Act of the Scottish Parliament,

(c)

an Act or Measure of the National Assembly for Wales, or

(d)

subordinate legislation;

Defined in s.212(1) · see it in the full Act

Cases considering Schedule 18, paragraph 2 6

ST & Anor v Secretary of State for the Home Department

[2021] EWHC 1085 (Admin) · 29 April 2021Limits

Paragraph 2 of Schedule 18 modifies section 149 in relation to immigration and nationality functions. The court considered the restriction on section 149(1)(b). (see para [57]) Paragraph 2(1) modifies section 149(1)(b) for immigration and nationality functions, including the specified meaning of race. The court used it in analysing the equality duty. (see para [57]) Paragraph 2(2) defines immigration and nationality functions by reference to the immigration statutes. The court considered that definition when analysing the statutory exceptions. (see para [57])

Turani & Ors v Secretary of State for the Home Department

[2019] EWHC 1586 (Admin) · 26 June 2019Limits

Provides an exception affecting section 149(1)(b) in the exercise of specified immigration and nationality functions. The court held that the immigration context alone did not engage the exception because no statutory or derivative power was exercised. (see paras [82], [128]) Defines immigration and nationality functions for the Schedule 18 exception. The court used the definition in rejecting the Secretary of State’s reliance on the exception. (see paras [82], [128])

Hoareau & Anor, R (On the Application Of) v Secretary of State for Foreign And Commonwealth Affairs

[2019] EWHC 221 (Admin) · 8 February 2019Limits

The court treated paragraph 2 as the specific immigration exception and held that the functions in issue did not fall within it so as to create an implied exclusion from section 149(1)(b) and (c) (see paras [157]-[164]).

What each judgment says about Schedule 18, paragraph 2 is in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F372Words in Sch. 18 para. 2(2)(h) substituted (31.12.2020) by The Equality (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/305), regs. 1, 5(8); 2020 c. 1, Sch. 5 para. 1(1)
  2. F373Words in Sch. 18 para. 2(2)(h) substituted (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 (S.I. 2023/1424), reg. 1(2), Sch. para. 72(3)(a)
  3. F374Words in Sch. 18 para. 2(2)(h) inserted (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 (S.I. 2023/1424), reg. 1(2), Sch. para. 72(3)(b)