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In R (Marouf) v. Secretary of State for the Home Department [2023] UKSC 23, the Supreme Court has for the first time considered the extraterritorial application of the public sector equality duty (PSED) in s.149 of the Equality Act 2010 (EA 2010). The issue arose in the context of a judicial review claim by a number of Palestine refugees who sought to benefit from the Vulnerable Persons Resettlement Scheme for refugees displaced by the civil war in Syria. The Scheme operated on the basis of referrals of recognised refugees by the United Nations High Commissioner for Refugees (UNHCR) only. Because the appellants were Palestine refugees, they fell under the auspices of the United Nations Relief and Works Agency for Palestine (UNRWA), rather than UNHCR. Whereas the latter UN agency had a resettlement mandate, the former did not. They were, therefore, excluded in practice from acceptance onto the Scheme. They challenged the Secretary of State’s establishment of the Scheme on a number of bases under the EA 2010 and at common law. The sole issue before the Supreme Court was whether the PSED in s.149 EA 2010 had extraterritorial effect. If it did, the High Court (Laing J) had already decided that there had been a failure to comply with it. If not, the claim was to be dismissed.
The Supreme Court dismissed the appellant’s appeal, holding that the PSED did not have extraterritorial effect. Lady Rose gave the judgment of the Court, with which Lord Reed, Lord Hodge, Lord Burrows and Lord Richards agreed. The Court confirmed the well-established presumption in domestic law that legislation was generally not intended to have extraterritorial effect. It rejected the argument that the presumption could be rebutted by construing it as having only a limited effect abroad; that made it less rather than more likely that it had extraterritorial effect. There was nothing in the legislation from which it could be inferred that the presumption had been overridden. The PSED was intended to ensure that specified public bodies had due regard to the need to adopt policies which helped bring about societal change within the community. There was no general duty under s.149 on public bodies to attempt to bring about that kind of change in countries outside the UK and it was not open to a person with a protected characteristic but no connection to the UK to challenge a public body's decision on the grounds that it had failed to have due regard to the need to improve their position within that overseas community. The Court dismissed the appeal.
David Blundell KC represented the Secretary of State for the Home Department, led by Sir James Eadie KC.
The judgment (28 June 2023) can be found here.
