Marouf, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 23

A Palestinian refugee in Lebanon challenged the UK's Vulnerable Persons Resettlement Scheme, arguing the public sector equality duty (PSED) under section 149 of the Equality Act 2010 applied extraterritorially. The Supreme Court held the PSED does not have extraterritorial effect, dismissing the appeal.

Facts

The Appellant, a Palestinian refugee from Syria living in Lebanon, sought resettlement in the United Kingdom under the Vulnerable Persons Resettlement Scheme. She met the vulnerability criteria but was excluded because the Scheme relied exclusively on referrals from the UNHCR, which does not cover Palestinian refugees (who fall under UNRWA’s mandate). She brought judicial review proceedings challenging the Scheme’s operation as unlawful discrimination and arguing the Secretary of State breached the public sector equality duty (PSED) under section 149 of the Equality Act 2010.

Procedural History

At first instance, Elisabeth Laing J held that section 29(6) did not have extraterritorial effect but, bound by previous authority, found that the PSED did apply extraterritorially and had been breached. The Court of Appeal reversed the finding on PSED extraterritoriality but extended section 29(6)’s reach slightly to cover individual applications under the Scheme, though dismissing the discrimination claim on justification grounds. The appeal to the Supreme Court concerned solely the extraterritorial effect of section 149.

Issues

The central issue was whether section 149 of the Equality Act 2010 (the PSED) requires public bodies to have due regard to equality needs when exercising functions that affect persons living outside the United Kingdom.

Judgment

Lady Rose, delivering the unanimous judgment, held that the PSED does not have extraterritorial effect. The Court affirmed the well-established presumption against extraterritorial application of legislation, stating:

“The starting point is indeed, as Simler LJ stated, that there is a presumption which it falls to the Appellant to rebut.”

Lady Rose rejected the argument that the presumption only arises where international comity is at risk, confirming it is a general principle of construction. She held that giving section 149 extraterritorial effect would serve no useful purpose in most cases, making it less rather than more likely Parliament intended such extension:

“If there is likely to be no useful purpose served in most cases by imposing the duty with extraterritorial effect, it is less, rather than more, likely that Parliament intended to extend the scope of the duty beyond this jurisdiction.”

The Court criticised the reasoning in the earlier Divisional Court decisions of Hottak and Hoareau, which had suggested the PSED applied extraterritorially without properly considering the presumption against extraterritoriality.

Key Arguments Rejected

The Appellant’s arguments that the PSED should have co-extensive extraterritorial effect with section 29(6), relying on Al-Skeini, were rejected. Lady Rose distinguished that case, noting the inbuilt limitations in the Human Rights Act 1998 which do not exist in section 149.

Implications

This decision clarifies that public bodies exercising functions with effects overseas are not required by the PSED to have due regard to equality needs of persons outside the UK. The judgment reinforces the presumption against extraterritorial effect of UK legislation and provides guidance on its proper application. While ordinary judicial review principles may still require consideration of overseas effects in appropriate cases, this does not arise from the PSED itself.

Verdict: Appeal dismissed. The public sector equality duty in section 149 of the Equality Act 2010 does not have extraterritorial effect.

Source: Marouf, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 23