Equality Act 2010, Schedule 3, paragraph 17

Nationality and ethnic or national origins

SCHEDULE 3 Services and public functions: exceptions

17 (1) This paragraph applies in relation to race discrimination so far as relating to—

(a) nationality, or

(b) ethnic or national origins.

(2) Section 29 does not apply to anything done by a relevant person in the exercise of [F275relevant functionsF275] .

(3) A relevant person is—

(a) a Minister of the Crown acting personally, or

(b) a person acting in accordance with a relevant authorisation.

(4) A relevant authorisation is a requirement imposed or express authorisation given—

(a) with respect to a particular case or class of case, by a Minister of the Crown acting personally;

(b) with respect to a particular class of case, [F276by or under anything mentioned in sub-paragraph (5)(a) to (c)F276] .

(5) [F277 “Relevant functions” means functions exercisable by virtue of F277] —

(a) the Immigration Acts,

(b) the Special Immigration Appeals Commission Act 1997, [F278orF278]

(c) F282[F279 anything which forms part of [F280 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 3F280] of the European Union (Withdrawal) Act 2018 and [F281 (in either case)F281,F279]] relates to immigration or asylum....

F282(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The reference in sub-paragraph (5)(a) to the Immigration Acts does not include a reference to—

(a) sections 28A to 28K of the Immigration Act 1971 (powers of arrest, entry and search, etc.), or

(b) section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (power of arrest).

Cases considering Schedule 3, paragraph 17 7

Turani & Anor v Secretary of State for the Home Department

[2021] EWCA Civ 348 · 15 March 2021Interprets

The Schedule 3 exception confirms that section 29 can in principle concern immigration functions. It permits limited nationality discrimination in specified circumstances, subject to personal ministerial responsibility for authorisation. (see paras [59]-[61]; [69]) The court considered the original ministerial authorisation under paragraph 17(4), but no equivalent authorisation covered the expanded Scheme. (see paras [10]; [61])

ST & Anor v Secretary of State for the Home Department

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

Paragraph 17 provides the immigration exception for discrimination based on nationality or ethnic or national origins. The court considered its relevance to the pleaded discrimination grounds. (see para [54]) Paragraph 17(1) identifies nationality and ethnic or national origins as the relevant grounds for the immigration exception. The court used it in distinguishing those grounds from colour. (see paras [54]-[57]) Paragraph 17(2) excludes section 29 from specified immigration functions. The court considered that the individual decision and NRPF scheme fell within the exception. (see para [54])

Turani & Ors v Secretary of State for the Home Department

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

Identifies discrimination on grounds of nationality or ethnic or national origins as falling within the Schedule 3 exception framework. (see para [81]) Provides that section 29 does not apply to specified immigration and nationality functions exercised by virtue of a relevant enactment. The court treated it as a statutory restriction on the authorisation and territorial analysis. (see paras [81], [110]-[112]) Defines relevant persons for the Schedule 3 immigration exception. The court referred to the provision in identifying the source of the authorisation power. (see para [81]) Provides for a relevant authorisation. The court held that the authorisation could not validate discrimination undertaken under common-law powers establishing the Scheme. (see paras [10], [81], [110]-[112]) Defines relevant enactments for the Schedule 3 exception. The court referred to it in identifying the statutory basis of the authorisation. (see para [81])

What each judgment says about Schedule 3, paragraph 17 is in the case-law panel in the full Act.

Amendments and notes

9 notes from legislation.gov.uk

Amendments

  1. F275Words in Sch. 3 para. 17(2) substituted (31.12.2020) by The Equality (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/305), regs. 1, 5(7)(b)(i); 2020 c. 1, Sch. 5 para. 1(1)
  2. F276Words in Sch. 3 para. 17(4)(b) substituted (31.12.2020) by The Equality (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/305), regs. 1, 5(7)(b)(ii); 2020 c. 1, Sch. 5 para. 1(1)
  3. F277Words in Sch. 3 para. 17(5) substituted (31.12.2020) by The Equality (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/305), regs. 1, 5(7)(b)(iii)(aa); 2020 c. 1, Sch. 5 para. 1(1)
  4. F278Word in Sch. 3 para. 17(5)(b) inserted (31.12.2020) by The Equality (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/305), regs. 1, 5(7)(b)(iii)(bb); 2020 c. 1, Sch. 5 para. 1(1)
  5. F282Sch. 3 para. 17(4)(d) and word omitted (31.12.2020) by virtue of The Equality (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/305), regs. 1, 5(7)(b)(iii)(dd); 2020 c. 1, Sch. 5 para. 1(1)
  6. F279Words in Sch. 3 para. 17(5)(c) substituted (31.12.2020) by The Equality (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/305), regs. 1, 5(7)(b)(iii)(cc); 2020 c. 1, Sch. 5 para. 1(1)
  7. F280Words in Sch. 3 para. 17(5)(c) 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(2)(a)
  8. F281Words in Sch. 3 para. 17(5)(c) 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(2)(b)

Commencement

  1. I107Sch. 3 wholly in force at 1.10.2012; Sch. 3 not in force at Royal assent see s. 216; Sch. 3 in force at 1.10.2010 for certain purposes by S.I. 2010/2317, art. 2(3); Sch. 3 in force so far as not already in force at 1.10.2012 by S.I. 2012/1569, art. 2(d)