R (on the application of Toraane and another) v Secretary of State for the Home Department [2023] UKSC 23 – UKSC Blog

R (on the application of Toraane and another) v Secretary of State for the Home Department [2023] UKSC 23 – UKSC Blog

The public sector equality duty (“PSED”) imposed by section 149 of the Equality Act 2010 is a procedural obligation that requires public bodies to have due regard to the equality needs listed in that section when exercising their functions. This appeal concerns the territorial scope of the PSED. It raises the issue of whether a public body is required under the PSED to have due regard to people living outside the United Kingdom when exercising its functions.

The Appellant is a Palestinian refugee currently living in Lebanon, having fled the conflict in Syria. She asserted that she should be treated as eligible to come to the United Kingdom under the Vulnerable Persons Resettlement Scheme (“the Resettlement Scheme”) instituted by the Government in 2014. However, the Resettlement Scheme was applied only to refugees referred to by the United Nations High Commissioner for Refugees (“UNHCR”). The Appellant is outside the remit of the UNHCR because she is registered with the United Nations Relief and Works Agency (“UNRWA”). Whereas UNHCR has a specific mandate to assist refugees by local integration in the country where they are living, or by resettlement in a third country, UNRWA has no such mandate. It follows that in practice, Palestinian refugees cannot take part in the Resettlement Scheme.

The Appellant brought judicial review proceedings challenging the lawfulness of the Secretary of State’s adoption and operation of the Resettlement Scheme. The ground of challenge directly relevant to this appeal was that the Secretary of State failed to comply with the PSED because she did not have due regard to the equality needs set out in that section.

The High Court held that the PSED did have extraterritorial effect. On appeal, the Court of Appeal disagreed and held that it did not. The Appellant now appeals to the Supreme Court.

HELD: The Court unanimously dismisses the appeal.

The presumption against the extraterritorial effect of legislation

The starting point for consideration of the scope of the enactment is the presumption in domestic law that legislation is not intended to have extraterritorial effects. This well-established principle has been applied for very many years to many actions. In the absence of express words, the extraterritorial application of legislation may be implied but there is a high threshold to overcome before any such implication.

The extraterritorial effect of section 149 as a whole

The Appellant’s primary case was that of the whole of section 149 which had an extraterritorial effect. She particularly relies on section 149(1)(b), arguing that the Secretary of State had failed to have due regard to the need to advance equality of opportunity for persons who share a relevant protected characteristic (in this case being a Palestinian refugee) as compared with persons who do not share it (in this case, other refugees).

The Supreme Court holds that there is nothing in the legislation from which one can imply that the presumption against extraterritoriality has been overridden. On the contrary, the scope of the equality goals which public authorities should aspire to achieve suggests there is no such intention. The PSED is intended to ensure that specified public bodies have due regard to the need to adopt policies which help to bring about societal change that would see the elimination of discrimination and promotion of equality of opportunity and good relations between different groups within the community. There is no duty on public bodies under section 149 to attempt to bring about that kind of change in countries outside the United Kingdom. It is not open to a person with a protected characteristic but no connection to the United Kingdom to rely on the PSED to challenge a decision of a public body on the grounds that a policy adopted failed to have due regard to the need to improve their position within that overseas community.

Extraterritorial effect of section 149(1)(a) co-extensive with a breach of section 29(6) of the Equality Act 2010

The Appellant’s alternative case was that the specific procedural duty under section 149(1)(a) to have due regard to the need to avoid unlawful discrimination has extraterritorial effect. The Appellant depends on the Court of Appeal’s decision that the substantive prohibition on unlawful discrimination, under section 29(6), has extraterritorial effect to a limited extent [9] (although the Court of Appeal held there had been no unlawful discrimination in this case). The substantive provisions apply to individual Palestinian refugees at the point when they are prevented from proceeding to the next stage of being considered for resettlement under the Resettlement Scheme [61]. Thus, the Appellant argued that the territorial scope of the procedural duty must be as wide as the relevant substantive provisions that set out the duty not to discriminate.

The Supreme Court holds that the procedural duty to have due regard to the need to avoid unlawful discrimination under section 149(1)(a) is not engaged. The PSED is primarily directed at policy decisions not at the application of policy to individual cases. The Appellant’s argument would confer rights on people all over the world to challenge the decision-making process of a public body exercising its functions, if the exercise of the public body’s functions affected them [64]. Given the very serious implications of that construction for public bodies, if Parliament wanted extraterritorial effect to apply to part of section 149(1) but not to the other parts, it would have made this express in the legislation.

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9 March 2023 Morning session Afternoon session

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