High Court delivers important decision on extra-territorial application of the Equality Act 2010

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The High Court (Laing J) has today delivered judgment in the case of R (Turani and others) v. Secretary of State for the Home Department [2019] EWHC 1586 (Admin). The claim involved a judicial review challenge to the establishment of the Syrian Vulnerable Persons Resettlement Scheme ("the Scheme"). The Scheme was established in January 2014 in response to the Syrian refugee crises. As initially established, it sought to assist the most vulnerable displaced Syrians through resettlement to the United Kingdom. The Claimants were all Palestine refugees, formerly resident in Syria, but displaced by the civil war and receiving assistance from UNRWA in the Lebanon. They commenced a judicial review challenge to the legality of the Scheme on the grounds that their exclusion on the grounds of their nationality was unlawful. The Scheme was later extended, in 2017, to cover the most vulnerable persons displaced from Syria of any nationality. The Claimants maintained their challenge on the grounds that, since the Scheme operated on the basis of referrals from UNHCR to the UK, and they fell under the auspices of UNRWA, they were in effect still excluded from the Scheme since the mandates of the two organisations were mutually exclusive. The claim proceeded on three grounds: indirect discrimination under the Equality Act 2010 ("EA 2010"), discrimination at common law, and breach of the public sector equality duty ("PSED"). In an important judgment on the territorial scope of the EA 2010, as well as on the interaction of the mandates of UNHCR and UNRWA, Laing J dismissed the claims of indirect discrimination and common law discrimination, but allowed the claim on the basis of a breach of the PSED. As regards the indirect discrimination claim, Laing J held that section 29 EA 2010 did not extend to acts done outside the United Kingdom and so did not have extraterritorial application. In any event, any difference in treatment by the use of UNHCR to make referrals was justified. The common law claim added nothing to the EA 2010 claim. As regards the PSED ground, Laing J considered that section 149 EA 2010 also did not apply extraterritorially outside the United Kingdom. In that respect, she disagreed with the decisions of the Divisional Court in Hottak v. Secretary of State for the Home Department [2015] EWHC 1593 (Admin) and Hoareau v. Secretary of State for the Home Department [2019] EWHC 221 (Admin). However, as those decisions had been taken by two-judge constitutions of the Divisional Court, it was inappropriate for her, as a single judge of the High Court, to depart from them. Accordingly, she decided the claim on the basis that the PSED did apply extraterritorially. Having done so, she concluded that the Secretary of State had failed to comply with it when expanding the Scheme in 2017, through failing properly to consider the position of Palestine refugees such as the Claimants. Accordingly, the claim succeeded to that limited extent. The judgment can be found here. David Blundell appeared as junior counsel for the Secretary of State, led by Jonathan Hall QC (who has been appointed as the Independent Reviewer of Terrorism Legislation since the hearing).

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