A resettlement scheme for people displaced by the Syrian conflict used referrals from one UN agency. In Lebanon, Palestinian refugees came under a different agency that could not refer them. Ms Marouf challenged that consequence. The issue before the Supreme Court was whether the Home Secretary owed the public sector equality duty in respect of people in her position abroad.
The scheme and the claim
The Vulnerable Persons Resettlement Scheme was an ex gratia scheme announced in Parliament in January 2014 and operated outside the Immigration Rules. It offered particularly vulnerable displaced refugees a direct route to the United Kingdom, with priority for survivors of torture and violence and for women and children at risk or needing medical care. The Secretary of State relied on the United Nations High Commissioner for Refugees (UNHCR) to identify and recommend people for resettlement. It was originally limited to Syrian nationals and was widened in July 2017, but it continued to operate through UNHCR referrals.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The appellant, a Palestinian refugee from the conflict in Syria, was living in Lebanon and wanted to settle in the United Kingdom. The Secretary of State accepted that she met the vulnerability criteria. Palestinian refugees in Lebanon, Jordan, Syria, the West Bank and Gaza are, however, within the exclusive mandate of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), not the UNHCR. UNRWA has no mandate to arrange resettlement in a third country. In practice, Palestinian refugees could not take part in the scheme.
She brought judicial review proceedings on two grounds. She alleged that the scheme involved unlawful discrimination contrary to section 29(6) of the Equality Act 2010 and was irrational. She also alleged that the Secretary of State had failed to comply with the public sector equality duty in section 149, particularly section 149(1)(b): the duty, when exercising functions, to have due regard to the need to advance equality of opportunity between people who share a protected characteristic and people who do not. The comparison she relied on was between Palestinian refugees and other refugees.
The decisions below
The High Court rejected the claim of unlawful discrimination and the challenge to the rationality of the referral policy. It nevertheless held that the equality duty applied and found a failure to consider the disadvantage faced by Palestinian refugees when the scheme was drawn up.
By the appeal, the Home Secretary had produced a further equality statement. The live question was the duty’s territorial reach. The Court of Appeal distinguished designing the scheme from applying it at a stage closely connected to entry clearance. It held that the policy was justified in any event. The Supreme Court gave permission only on section 149.
The presumption against extraterritorial effect
Lady Rose began with the presumption that legislation is intended to operate within the United Kingdom. The presumption can be displaced by express wording or necessary implication. It does not depend on proof that applying the legislation abroad would interfere with another country’s sovereignty.
Why section 149 does not apply to people overseas
Her principal argument was that the whole of section 149 applies where a United Kingdom public body’s functions affect people abroad. She said that “due regard” is flexible, so if nothing useful can be done overseas the regard due is minimal and the duty is easily satisfied. Lady Rose accepted, following Bridges and Sheakh, that what counts as due regard depends on context. Flexibility could not, however, rebut the presumption. If the duty would usually serve no useful purpose abroad, that made extraterritorial effect less rather than more likely. This was not a case in which the duty could not achieve its purpose unless it applied overseas.
The Court disagreed with the reasoning in Hottak and Hoareau. Those decisions had treated section 149 as applying to policy made in Great Britain even where its impact was wholly or partly abroad, without considering the presumption. A decision taken in the United Kingdom does not require regard to every effect on anyone anywhere in the world. It also did not matter that the bodies subject to the duty are United Kingdom public bodies. The issue was whether, when functions are exercised here, the duty extends to promoting equality in respect of persons or matters outside the United Kingdom. Lady Rose held that it does not.
The statutory goals confirm that reading. Section 149 is directed to societal change within the community for which the public body is responsible: eliminating discrimination, advancing equality of opportunity and fostering good relations. There is no general duty to attempt that change in other countries, where the body may have no real sphere of operation and where laws, customs and views of equality may differ. A person with a protected characteristic but no connection with the United Kingdom cannot challenge a policy for failing to improve that person’s position in an overseas community. A published equality statement is also a means of public accountability. It was not credible that Parliament expected public bodies to publish how they had addressed participation in public life in a foreign country.
Lady Rose distinguished ordinary judicial review. If factors of the kind listed in section 149 are so germane to a decision to be implemented overseas that the decision-maker must take them into account, a failure to do so may be challenged on ordinary principles. That possibility does not depend on section 149, and it was not Parliament’s purpose to create a separate challenge to the adequacy of a published equality statement for people abroad.
The narrower alternative
Alternatively, the appellant argued that section 149(1)(a), which concerns due regard to eliminating conduct prohibited by the Act, has the same limited extraterritorial reach as section 29(6). The Court of Appeal had held that refusing to let an individual proceed without a UNHCR referral was close enough to granting entry clearance to fall within section 29(9), whereas adoption of the scheme was not. Her complaint was directed at the introduction and amendment of the policy. Because that step lay outside section 29(9), section 149(1)(a) was not engaged. Lady Rose agreed. The equality duty is primarily concerned with policy rather than with applying a policy to one person. The obligation not to discriminate against an individual already arises from the Act’s substantive provisions; there was no need to impose section 149(1)(a) as well.
Parliament had specified the territorial reach of other provisions of the Equality Act. It had not given the different parts of section 149 different territorial scopes. The Court declined to read in that distinction.
Verdict: The Supreme Court unanimously dismissed Ms Marouf’s appeal. Section 149 did not entitle a person living abroad with no connection to the United Kingdom to challenge this policy on the ground that the minister had failed to have due regard to equality in the overseas community. The separate ruling on justification was outside the appeal.
Source: R (on the application of Marouf) v Secretary of State for the Home Department [2023] UKSC 23
