Extraterritorial Application of Equality Duty in Refugee Resettlement: Turani & Anor v. Secretary of State for the Home Department

Introduction

The case of Turani & Anor v. Secretary of State for the Home Department ([2021] EWCA Civ 348) addresses critical issues surrounding the application of the Equality Act 2010 (EA 2010) in the context of refugee resettlement schemes in the United Kingdom. The appellants, Palestinian refugees from Syria residing in Lebanon, challenged the UK's Vulnerable Persons Resettlement Scheme (VPRS) and its successor, the UK Resettlement Scheme (the New Scheme). They argued that the exclusive reliance on the United Nations High Commissioner for Refugees (UNHCR) for referrals resulted in indirect discrimination under the EA 2010, specifically aggravated by the United Nations Relief and Works Agency's (UNRWA) exclusive mandate for Palestinian refugees. The central legal question revolves around whether the EA 2010's equality duties extend extraterritorially to actions influencing individuals outside the UK's jurisdiction.

Summary of the Judgment

The England and Wales Court of Appeal deliberated on four primary issues:

1. The territorial scope of section 29(6) of the EA 2010.
2. Justifiability of indirect discrimination under section 29(6) when applied extraterritorially.
3. Rationality of the common law decision-making process.
4. The extraterritorial reach of section 149(1)(b) of the EA 2010 concerning the Public Sector Equality Duty (PSED).

The appellate court upheld the original judgment, dismissing the appellants' claims of unlawful discrimination. However, the court allowed the respondent's cross-appeal regarding the extraterritorial application of the PSED, particularly section 149(1)(b), asserting that the duty does not extend beyond the UK's territorial boundaries.

Analysis

Precedents Cited

The judgment references several key cases and statutory provisions that influenced the court's reasoning:

• Hottak v Secretary of State for the Home Department [2015] EWHC 1953 (Admin) – Addressed the territorial scope of equality legislation in the context of refugee resettlement.
• R (Hoareau and another) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) – Further examined the extraterritorial application of equality duties.
• Lawson v Serco Ltd [2006] UKHL 3 – Established the general presumption against extraterritoriality in UK law.
• R (on the application of KBR Inc) v Director of the Serious Fraud Office [2021] UKSC 2 – Provided a nuanced approach to extraterritorial jurisdiction.
• MN v Belgium App no. 3599/18 – An unreported decision used as an analogy for territorial jurisdiction concerning Convention rights.

These precedents collectively underscore the court's approach to balancing statutory interpretation with the principles of comity and legislative intent, especially regarding extraterritorial applications.

Legal Reasoning

The court's legal reasoning centered on interpreting the EA 2010's provisions, particularly sections 29 and 149, in determining their territorial application.

Territorial Scope of Section 29(6) EA 2010

Initially, the lower court held that section 29(6), which prohibits indirect discrimination in the exercise of public functions, did not have extraterritorial reach concerning the VPRS. The appellate court, however, re-evaluated this stance, emphasizing that the Scheme's decision-making processes – inclusive of refusal of entry clearance – fall within the ambit of section 29(6). By virtue of section 29(9), which specifically extends anti-discrimination provisions beyond UK borders concerning entry clearance, the court concluded that the indirect discrimination inherently linked to the Scheme's referral mechanism was subject to the EA 2010, even extraterritorially.

Justification of Indirect Discrimination

The appellants contended that the exclusive reliance on UNHCR constituted unjustifiable indirect discrimination. The court assessed whether the Scheme's reliance on UNHCR was a proportionate means of achieving a legitimate aim, namely the swift and effective resettlement of vulnerable refugees. The court upheld the original judgment, supporting the rationale that UNHCR's expertise and capacity were essential to the Scheme's objectives, and alternative referral mechanisms (such as NGOs or self-referral) would have undermined the Scheme's effectiveness.

Extraterritorial Application of Section 149(1)(b) EA 2010

While the appellants challenged the extra-territorial reach of the PSED, particularly concerning the duty to advance equality of opportunity, the appellate court maintained that section 149(1)(b) does not extend beyond the UK's territorial jurisdiction. The court reasoned that expecting public authorities to promote equality for individuals outside the UK's sphere of influence is incoherent and not within Parliament's legislative intent.

Impact

This judgment has significant implications for the UK's refugee resettlement policies and the extraterritorial application of equality laws:

• Refugee Resettlement Schemes: The decision reinforces the legitimacy of exclusive referral mechanisms in resettlement schemes, emphasizing the necessity of specialized agencies like UNHCR in managing large-scale, complex refugee crises.
• Equality Act 2010: The judgment clarifies the boundaries of the EA 2010's applicability, affirming that equality duties do not generally extend beyond the UK's territorial limits unless explicitly stated.
• Public Sector Equality Duty (PSED): By limiting the extraterritorial reach of section 149(1)(b), the court underscores the principle that public authorities are primarily accountable for equality within the UK's jurisdiction.
• Legislative Interpretation: The case exemplifies the judiciary's role in interpreting legislative intent, especially concerning extraterritorial applications, and the importance of clear statutory language in defining jurisdictional boundaries.

Future cases involving equality legislation and its application to non-domestic contexts will likely reference this judgment, particularly in scrutinizing the extent and limits of equality duties vis-à-vis international policies and frameworks.

Complex Concepts Simplified

Indirect Discrimination

Indirect discrimination occurs when a seemingly neutral policy or practice disproportionately disadvantages a particular group with a protected characteristic, such as nationality. In this case, the exclusive reliance on UNHCR for refugee referrals inadvertently excluded Palestinian refugees supported by UNRWA, thereby disadvantaging them based on their national origin.

Extraterritorial Application

Extraterritorial application refers to the extension of a country's laws beyond its geographic borders. The central legal question was whether the UK's Equality Act 2010 duties applied to actions affecting individuals outside the UK, particularly in the context of refugee resettlement.

Public Sector Equality Duty (PSED)

The PSED mandates public authorities to advance equality of opportunity, eliminate discrimination, and foster good relations between different groups. The court examined whether these duties applied to the formulation of refugee resettlement policies affecting individuals outside the UK's jurisdiction.

Referral Mechanism

A referral mechanism in refugee resettlement schemes is the process through which refugees are recommended for asylum in a new country. The VPRS and the New Scheme relied solely on UNHCR to make these referrals, which became a point of contention for refugees outside UNHCR's mandate, such as Palestinian refugees in UNRWA territories.

Conclusion

The Court of Appeal's decision in Turani & Anor v. Secretary of State for the Home Department underscores the limits of the Equality Act 2010's application concerning refugee resettlement schemes. By affirming that the EA 2010 does not extend its equality duties extraterritorially except where explicitly stated, the judgment delineates clear boundaries for public authorities in designing and implementing refugee policies. The ruling vindicates the necessity of specialized agencies like UNHCR in managing resettlement processes, given their expertise and capacity, while also reinforcing the principle that equality laws primarily govern actions within a country's own jurisdiction. This case serves as a pivotal reference point for future legal interpretations of statutory equality obligations in international contexts.