The Supreme Court has held that there was no legal obligation to consider the equality impact of excluding Palestinians from the UK’s resettlement scheme for refugees from Syria. The design of the scheme was therefore lawful. The case is R (on the application of Marouf) v Secretary of State for the Home Department  UKSC 23.
In short, the UK’s resettlement scheme relied on one United Nations agency, the United Nations High Commissioner for Refugees (UNHCR), to select refugees for resettlement. This had the effect of excluding from the scheme the many Palestinian refugees living in Syria. This is because UNHCR is excluded from responsibility for Palestinians because they are the responsibility of a different United Nations agency, United Nations Relief and Works Agency for Palestine Refugees (UNRWA).
The Palestinians living in Syria were no less in need of protection or resettlement than other residents of Syria. But the design of the UK’s ‘bespoke’ scheme excluded them. Whether this was by design or by accident is not clear but it was probably the latter – the High Court found there was no evidence the Home Secretary had ever even thought about the issue.
The background to the case is the unique position of Palestinians in refugee law; see our explainer Briefing: Article 1D of the Refugee Convention and Palestinian refugees. In summary, the vast majority of Palestinians are legally stateless. UNRWA provides humanitarian assistance to those who meet its criteria and are registered with it in the Occupied Palestinian Territories, Syria, Jordan, and Lebanon. Its mandate does not, however, extend to resettlement abroad.
The appellant, Ms Marouf, is Palestinian and was previously one of over 575,000 registered with UNRWA in Syria. Due to the conflict there she fled to Lebanon. No one disputed that she was highly vulnerable.
If Ms Marouf had been Syrian, she could have applied to be resettled in the UK under the Vulnerable Persons Resettlement Scheme. This was launched by the then Home Secretary in January 2014 to provide a safe and legal route for the most vulnerable displaced Syrian nationals. It was later expanded to include anyone who had fled Syria.
The problem for Ms Marouf was that the resettlement scheme relied on the UNHCR to identify beneficiaries. The UNHCR’s mandate does not include people receiving assistance from another UN agency – such as UNRWA. Ms Marouf and many like her were therefore ineligible for the resettlement scheme.
Ms Marouf brought a judicial review challenging the adoption and operation of the scheme. She argued that it unlawfully discriminated against Palestinians, that it was irrational, and that there had been a breach of the public sector equality duty. The Court of Appeal decided against her. She was granted permission to appeal to the Supreme Court on the equality duty point only. The issue for the Supreme Court was whether that duty had extraterritorial effect – that is, whether it applied in relation to people outside the UK.
The public sector equality duty
The public sector equality duty comes from section 149(1) of the Equality Act 2010, which states:
A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
One of the protected characteristics, under section 149(7), is race. The High Court had already found that the Home Secretary had not had regard to the need to advance equality of opportunity for Palestinian refugees like Ms Marouf. That meant that the scheme was being operated unlawfully if the public sector equality duty had extraterritorial effect. But did it?
Lady Rose, giving the Supreme Court’s only judgment, held that the answer was no. After a survey of the relevant case law, she concluded that there is a ‘well-established’ presumption that Parliament does not intend legislation to have extraterritorial effect unless it expressly says so. It is possible to show that an individual section or statute was intended to apply abroad, but the threshold for doing so is high.
That threshold, Lady Rose said, is not met in the case of the public sector equality duty. There is nothing in the wording of the legislation to support Ms Marouf’s argument. The ‘public authorities’ listed in the Equality Act have responsibilities to foster good relations within their own communities, but it would go too far to make them accountable to overseas communities as well without Parliament having stated this expressly.
The appeal was therefore dismissed.
The outcome of Marouf will be disappointing to those who want the UK government to be more accountable for the worldwide impact of its decisions.
However, the judgment does not completely shut the door on raising equality issues concerning people outside the UK. As Lady Rose pointed out, there remains a common law duty on public bodies to take account of all material factors before making a decision. In a case where the decision is to be implemented abroad, those factors might include the inequality faced by people living there who have a particular characteristic. If it is not considered when it should have been, a judicial review may still succeed.
The operation and scope of resettlement schemes is a controversial topic. Ms Marouf’s case illustrates the problem, previously discussed here, that those most in need can all too often themselves excluded.