This is an application for judicial review by the Claimants. Permission to apply for judicial review was given by Stewart-Smith J on 1 December 2017. The Claimants are

The Claimants were represented byRaza Husain QC, Blinne Ní Ghrálaigh and Julianne Kerr Morrison. The Defendant (‘the Secretary of State’) was represented by Jonathan Hall QC and David Blundell. I thank counsel for their written and oral arguments.

There are four issues.

Much of the first morning of the hearing was occupied by an application by Mr Husain to adduce evidence which, he accepted, was expert evidence, and by a debate about the pleadings. I refused his application to rely on expert evidence for reasons which I gave at the time.

The background to the debate about the pleadings is that after this claim was brought, the Secretary of State amended the terms of the Scheme. In short, the Secretary of State contended that that change made the claim academic. The Claimants did not accept that, as they made clear in their Reply dated 9 October 2017. They now contend that the Scheme, as amended, discriminates indirectly against them on the grounds of their race. There has been much correspondence as the Claimants have tried (with varying degrees of success) to find out information from the Secretary of State (including an application under CPR Part 18).

Despite invitations by the Secretary of State to amend their grounds of claim, the Claimants did not do so, although I do not consider that, despite the space devoted to this issue in the Secretary of State’s skeleton argument, the Secretary of State has been significantly prejudiced by this. The main issues are (with one exception) clear from the Reply, as the Secretary of State appeared to accept in a letter dated 3 April 2019. The exception is that the Claimants have not expressly defined an essential component of their indirect discrimination claim. That is, the provision, criterion or practice

I resolved the debate about the pleadings by asking Mr Husain to produce a formal document in which he described the PCP. He also helpfully agreed to describe the less intrusive means which he submitted, as part of his case on discrimination, the Secretary of State could have used instead of the PCP. The PCP is that all referrals under the Scheme are to be made exclusively to the United Nations High Commissioner for Refugees (‘UNHCR’). The less intrusive means ‘c/would include (1) self-referral to the local British Embassy or to the Home Office directly and (2) referral by one of the non-governmental organisations (‘NGOs’) active in the region’.

The Scheme was launched on 29 January 2014 by an oral statement to Parliament by the then Secretary of State. At first the Scheme applied only to Syrian nationals. The statement is set out in full in the Defendant’s skeleton argument. I will summarise the main points in the statement. The Secretary of State described the ‘staggering’ number of people affected, and the ‘immense’ scale of the refugee crisis. She pointed out that the United Kingdom was the second largest bilateral donor. She then described the material help which the United Kingdom was providing on the ground. She said that the greatest need was in the region and that that was where the United Kingdom could make the biggest impact. She referred to a ‘proud tradition’ of protecting those in need, and said that the United Kingdom was ‘ready to look at’ cases ‘where there are particularly vulnerable refugees who are at grave risk’. After consultations with UNHCR, the Government was launching a programme to give ‘emergency sanctuary’ to ‘displaced Syrians who are particularly vulnerable’.

The Scheme would be based on three principles.

On 13 March 2014, a Minister of State in the Home Office signed a document headed ‘Equality Act 2010 Paragraph 17(4) of Schedule 3 to the Equality Act 2010 Ministerial Authorisation Equality (Syria – Entry Clearance outside the immigration rules Authorisation 2014 (‘the Authorisation’). The Minister authorised the grant of entry clearance outside the immigration rules to Syrian nationals under the Scheme.

A written ministerial statement was made on 25 March 2014. This said, among other things:

The Scheme was widened somewhat in September 2015. At that stage, it was anticipated that 20,000 refugees would be resettled by 2020; a modest target when compared with the very large number of displaced people.

The Claimants’ solicitors, Leigh Day (‘LD’) sent a pre-action protocol letter to the Secretary of State on 22 November 2016. In its response to that letter, the Government Legal Service (‘GLD’) suggested that the Claimants could apply for resettlement under the VCRS, applications for which were determined by UNHCR. GLD suggested that it was up to the Claimants to approach UNHCR (letter of 22 November 2016).

On 6 January 2017 the Claimants brought this claim. They argued that the Scheme discriminated against them directly on grounds of race, that the Secretary of State had not complied with section 149 of the 2010 Act, and that the Scheme was irrational and unlawful because no reasons had been given for it. There was, at that stage, no reason for the pre-action protocol letter, or the grounds of claim, to refer to the mutually exclusive mandates of the United Nations Works and Relief Agency (‘UNRWA’) and of UNHCR and they did not do so.

The Secretary of State lodged her summary grounds of defence two working days before the announcement that the Scheme was to be widened (Claimants’ Reply, paragraph 1.b). I say more about that announcement below. The Secretary of State submitted that the Authorisation was an answer to the claim under the 2010 Act. The Scheme was set up under common law powers, but was operated by the grant of entry clearance. It was artificial to separate the establishment of the Scheme from the decision to grant entry clearance (paragraph 30).

The Secretary of State argued that the claim under the 2010 Act was in any event misconceived because the 2010 Act does not extend beyond the territory of the United Kingdom. The Secretary of State referred to section 29(9) and 29(10) of the 2010 Act, and to the decision of the Court of Appeal in R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA (Civ) 438; [2016] 1 WLR 3791.

The Secretary of State had ‘confirmed that she gave consideration to the PSED at the time the Scheme was formulated’. The Secretary of State also argued, in reliance on the decision of the Court of Appeal in Hottak, that section 149(1)(b) did not apply to entry clearance and that section 149(1)(a) was not engaged.

The reasons challenge was resisted.

The Secretary of State also contended that delay and a suitable alternative remedy barred the claim. On the second of those points, the Secretary of State argued that the Claimants had not ‘attempted to approach UNHCR for acceptance onto one of the alternative settlement schemes that exist’ (paragraphs 23-15). The Secretary of State referred to the VCRS and to the Gateway Scheme. The Secretary of State asserted the Claimants could have approached UNHCR under both schemes, and that ‘Neither programme has any nationality exclusion’.

On 29 June 2017, the Secretary of State produced a document headed ‘Annex A: Policy Equalities Statement’ (‘the PES’). The PES was not, however, disclosed to the Claimants until shortly before the substantive hearing of this claim. It was attached to the fourth witness statement of Ms King-Fisher, dated 25 April 2019. Mr Hall apologised for that late disclosure at the hearing. The title of the PES referred to the Scheme. The review date for the PES was stated to be 30 July 2017. There is no document in the bundle recording any such review. While it is clear that the author of the PES expected there to be a review, the Secretary of State has not suggested that there was one. That being so, I consider that I can assume that there was not. It is likely, given the date and the heading of the PES, that it was prepared as part of a ministerial submission about the widening of the Scheme. At the foot of the second page of the PES is a box headed ‘Summary of the evidence considered in demonstrating due regard to the Public Sector Equality Duty’. The evidence appears to be mainly statistical.

The first sentence of the PES said that through the Scheme, the Home Office worked ‘with [UNHCR] to identify those most at risk and bring them to the UK. The scheme was launched in January 2014 and has helped those in greatest need, including people requiring urgent medical treatment, survivors of violence and torture, and women and children at risk’. The Scheme was to be widened from July 2017 to include those who had fled the conflict in Syria but did not have Syrian nationality. A premise of the PES is that UNHCR will be closely involved in the operation of the Scheme on the ground.

The PES does not refer to the mutual exclusivity of the mandates of UNHCR and of

On 3 July 2017, in a written statement to Parliament the Secretary of State announced that the Scheme would no longer be limited to Syrian nationals. She said the Syrian crisis was entering its seventh year. Thousands of refugees were being driven towards Europe’s borders. The United Kingdom had pledged £2.46 billion to help. Direct support had reached hundreds of thousands of people in Syria, Jordan, Lebanon, Turkey, Iraq and Egypt. The aim was to help Syrians build a life in neighbouring countries.

She referred to the Scheme. Its focus so far had been Syrian nationals because ‘they formed an easily identifiable cohort of refugees who have fled the conflict and whose needs are clearly evident’. That focus had led to a ‘quick and efficient response to the crisis’. The Government worked ‘closely with UNHCR to identify the individuals who are most at risk in the region and whose particular needs can only be met in countries like the UK’. Up to the end of March 2017, 7,307 Syrians had been resettled in the United Kingdom. Half were children. The Government was ‘on track to meet’ the commitment to resettle 20,000 refugees by 2020. Further, the VCRS, launched the previous year, would ‘see us resettle up to 3000’ of the most vulnerable children and their families from the Middle East and from North Africa by 2020.

The Scheme was aimed at ‘the most vulnerable Syrians’ but there were ‘additional groups in the region who have fled Syria and are also extremely vulnerable’ but might not have access to one of the resettlement schemes. UNHCR’s advice was that ‘a diversified resettlement quota’ was needed to address ‘the needs of the most vulnerable refugees from all refugee populations in the region’. In the light of that, the Secretary of State was immediately opening the Scheme to ‘enable UNHCR to refer the most vulnerable refugees in the MENA region who have fled the Syrian conflict and cannot safely return to their country of origin, whatever their nationality’.

The Government was committed to ‘an effective response in the affected regions and to resettling the most vulnerable; this includes those who had sought refuge within Syria prior to the conflict and been recognised as refugees. We will continue to rely on UNHCR to identify and refer the most vulnerable refugees but will no longer limit the scheme solely to those with Syrian nationality. UNHCR will only refer to us those who are genuine refugees, in that they cannot seek the protection of their home country’.

Mixed family groups would be eligible and the change might open the Scheme to other groups, such as Iraqi minorities, who sought refuge in Syria but had to flee again as a result of the Syria conflict. The change recognised that other nationalities who had lived in Syria had been affected by the conflict. The approach was said to be ‘based on targeting our support so that it delivers the most impact, helps those who need it most, and avoids unintended consequences.’ The change would help the Government to

On 4 July 2017, LD wrote to GLD. The letter asked GLD to confirm, ‘by return’, that all the Claimants would be eligible for resettlement under the Scheme; if they were then able to apply, how they could do that, since they were unable to register with UNHCR as they were PRS; and that the Secretary of State was no longer resisting the application for judicial review. LD wrote to the Court on 24 July 2017.

On 6 July 2017, GLD wrote to LD. GLD referred to, and quoted, the 3 July 2017 statement. GLD asserted that the Claimants’ claim was now academic. GLD also asserted, ‘They can approach UNHCR for referral to the United Kingdom’. GLD asked the Claimants to withdraw their claim.

On 12 July, LD emailed GLD. LD asked for an up-date, and asked, ‘How can our clients apply to the Scheme as Palestinians, given they cannot register with UNHCR?’ On 12 July 2017, GLD replied. The author of the email said, ‘I am told by my client that they are already aware of the issue and already discussing this with UNHCR’. On 13 July LD emailed GLD asking whether the Secretary of State was setting up a bespoke arrangement with UNHCR in Beirut through which the Claimants could apply. The Claimants were ‘extremely anxious’ to get clarification as they wanted to apply to the Scheme.

On 1 August 2017, GLD replied to LD’s email of 13 July. It is clear from that email that the Secretary of State still did not have an answer to the questions LD had asked on 4 July 2017. The email said, ‘the practical issues regarding registration on the Scheme [were] particularly sensitive’. The Secretary of State had been ‘in discussions about how the Scheme will operate…’. The email made it clear that the Secretary of State would continue to ‘rely on UNHCR to identify and refer the most vulnerable refugees…regardless of their nationality’. The Secretary of State, it was said, was working urgently with ‘international partners to identify referral pathways for [PRS]’. PRS in Jordan and Lebanon should register with UNRWA ‘and relevant authorities. On a case-by-case basis and after a thorough and joint assessment [PRS] may be considered for resettlement and other pathways of admission to third countries, as applicable’.

LD replied on 22 August 2017. They reminded the Secretary of State that the Claimants were already registered with UNRWA. LD asked eight questions about how the

On 29 September 2017, LD wrote to the Court. GLD was copied in. LD said they had been trying get the Secretary of State to clarify the July statement. Despite that announcement, PRS, including the Claimants, were still not able to get access to the Scheme. The Secretary of State had still not given details of any way in which PRS could have access to the Scheme.

On 9 October 2017, counsel for the Claimants signed a ‘Reply/Update to the Court’. Paragraph 1.a. referred to the 3 July 2017 statement. The Claimants said that it had become clear that ‘in practice the Claimants, and [PRS] in general, remain excluded from [the Scheme] because there is no process in place through which they can apply, or be referred, to the UK Government for resettlement’. The Reply would deal with the implications of the 3 July statement for the claim. Paragraph 6 explained that the Secretary of State’s decision to continue to rely on UNHCR meant that PRS who were receiving help from UNRWA were excluded from the Scheme in practice because such PRS are outside UNHCR’s mandate. The Claimants referred to article 1D of the Refugee Convention and articles 6-7 of the Statute of the UNCHR 1950. PRS in UNRWA’s areas of operation could not register with UNHCR in such areas and UNHCR had no mandate to refer PRS to the Scheme. The Reply then summarised the exchange of correspondence which I have already described. Paragraph 15 of the Reply said that the Secretary of State had not explained how PRS registered with UNRWA and not UNHCR could be referred to the Scheme, when UNRWA has no resettlement mandate, and UNHCR, no mandate over PRS. As far as the Claimants could tell, UNHCR was the only gateway to the Scheme.

In paragraph 22, the Claimants said that to argue that the opportunity to resettle in the United Kingdom, with all the benefits it entails, as ‘merely the residue of an initial decision on entry clearance was and is unsustainable’. In paragraph 23, they characterised the de facto exclusion of PRS from the Scheme as indirect discrimination, contrary to section 19 of the 2010 Act. It was not justified. Rather than justifying the discrimination, the Secretary of State continued to assert that PRS were eligible for the Scheme, without explaining how.

There was no rational reason for excluding PRS from the Scheme. The Secretary of State’s reliance on other schemes showed that she had failed to understand that the Claimants could not get access to any scheme via UNHCR (paragraph 26). On the jurisdiction issue, the Claimants attempted to distinguish Hottak. The Court of Appeal’s reasoning about a Part 3 claim was obiter, and wrong. The Claimants asserted that it was inconsistent with the conclusion of the House of Lords in R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55; [2005] 2 AC 1. They quoted paragraph 76 of the speech of Baroness Hale in that case.

In paragraph 36, the Claimants said, ‘If, as it appears, the Secretary of State has failed to appreciate that PRS cannot register with and/or access a scheme run exclusively by UNHCR…this is likely a result of her continuing failure to carry out a compliant assessment pursuant to her PSED’. The Claimants also said that the Secretary of State’s reliance on access to other schemes as an alternative remedy showed ‘the Secretary of State’s persistent failure to understand and address the impact of her reliance on UNHCR alone for referring refugees to [the Scheme]’, because they could not ‘approach UNHCR’ (paragraph 40; see also paragraph 41).

As I have said, Stuart-Smith J granted permission to apply for judicial review on 1

In a letter also dated 22 December, GLD responded to the order of 1 December 2017. The Secretary of State’s response was that she could not ‘indicate how a [PRS] can apply and be accepted as eligible under [the Scheme]…there is no application process for any resettlement scheme. However, that is not to say that a PRS cannot be resettled in the UK under [the Scheme]’. While refugees cannot apply for resettlement,

The next paragraph says that people being referred for resettlement have to be registered with UNHCR or, in the case of PRS living in Lebanon or Jordan, with UNRWA. It was understood that the Claimants were registered with UNRWA. They must then meet ‘the preconditions for resettlement consideration; and fall under one of UNHCR’s resettlement submission categories.’ The preconditions are that a person has been ‘determined to be a refugee by UNHCR’, that the person’s ‘prospects for all durable solutions’ had been assessed and that ‘resettlement is identified as the most appropriate solution’.

The letter said that PRS in Lebanon and Jordan are required to be registered with UNRWA. UNRWA will consider whether it is able to provide the support needed by

In the final paragraph, GLD said that the Secretary of State was ‘unable to guarantee the suitability of a referral for resettlement for a [PRS]. To do so would prejudice the established processes, as set out above, which operated according to the humanitarian principles of impartiality and neutrality. In accordance with those principles ‘each individual is assessed by the relevant agency and their success in respect of resettlement is dependant [sic] upon a number of factors, which are not assessed by the Defendant but either by UNRWA or UNHCR, depending on the area of displacement. Therefore there is every possibility that a [PRS] could be included in [the Scheme], provided they are registered. However, their individual circumstances will be assessed and processed in accordance with the above. The Defendant is not involved in these processes until a person or family is referred to the UK for resettlement under one of its schemes.’

The Secretary of State’s detailed grounds of defence were signed by counsel on 22 February 2018. The Secretary of State’s summary of the position was still that the claim was academic. The Secretary of State did not accept that the Scheme was unlawful in its original form, but it was now open to all nationalities, including Palestinians. The Secretary of State had explained in the letter dated 22 December 2017 that there was ‘an established process for PRS in Lebanon or Jordan (ie under the mandate of UNRWA) to be identified by UNRWA ‘as requiring services from partner organisations, including UNHCR, to address exceptional protection needs or vulnerabilities on an exceptional basis’. UNHCR could then consider whether resettlement, including in the United Kingdom, would be appropriate for them’. PRS were therefore able in practice to get access to the Scheme.

There was no ‘application process’ for anyone, even Syrians. ‘Instead, the Scheme operates on the basis of referrals from UNHCR. PRS are in no different position to refugees of other nationalities in that respect. Owing to the inability of UNRWA to identify suitable persons falling under their mandate for the provision of further services from partner organisations, including UNRWA, PRS can, in practice, be referred by UNHCR, in suitable cases, for acceptance onto the Scheme’.

The first witness statement of Ms King-Fisher is said to confirm this. I quote from it below; I do not consider that it does. The witness statement is also said to show in ‘considerable detail’ how a PRS can in practice have access to the Scheme ‘if referred from UNRWA to UNHCR’, and to show the considerable efforts made by the Secretary of State, in meetings with both organisations, to ensure that PRS are able in practice to have access to the Scheme. The conclusion is that ‘the Claimants are no longer excluded from the Scheme’. The claim was said to be academic, as the Claimants had got what they wanted.

That witness statement is also dated 22 February 2018. Ms King-Fisher is the official who was responsible for ‘developing the criteria to expand [the Scheme]’ (paragraph 2). She refers to four resettlement schemes in paragraph 4. Their purpose is to ‘target those in greatest need of assistance, including people requiring urgent medical treatment, survivors of violence and torture, and women and children at risk’. That is why the Secretary of State works closely with UNHCR. It has a global presence and over 60 years of experience (paragraph 6). UNHCR ‘identifies and proposes refugees for [the Scheme]’ (paragraph 7). It has well-established procedures and criteria (paragraph 8). It refers to the United Kingdom the refugees it has identified as meeting its criteria and those for whom resettlement is ‘the most appropriate durable solution’. The United Kingdom government does not intervene in the process of identification and referral ‘as set out in the Resettlement Handbook’ (paragraph 9). Page 216 is quoted. Resettlement is based on ‘objective need’. Consistently with that, people cannot apply directly to the United Kingdom for resettlement. There is no application process to the United Kingdom schemes. Referrals can only be made by UNHCR after they have assessed the need for resettlement in accordance with their vulnerability criteria (paragraph 10). Once UNHCR has made a referral, the Home Office do checks, including security screening, and assess whether the case should be accepted.

Ms King-Fisher says in paragraph 12 that the expansion of the Scheme could include

In paragraph 17, she explains that there are two ways in which a PRS could be considered for resettlement.

In paragraph 18, she accepts that PRS in Jordan and Lebanon cannot register with UNHCR directly. UNRWA has no mandate itself to consider resettlement. She exhibits the UNHCR Statute and a summary of UNRWA’s mandate. She says that UNRWA may ‘on a strictly humanitarian and case-by-case basis’ ask for help from other partners, including UNHCR, when an individual is experiencing exceptional vulnerabilities requiring additional assistance given the humanitarian imperative and in deference to an individual’s freedom to seek and pursue assistance that best responds to their needs’. In paragraph 19, Ms King-Fisher says that the description in paragraph 17 ‘has been confirmed by both UNRWA and UNHCR to be accurate’.

She describes work with UNHCR ‘and international partners’ (not identified) to ‘put in place the operational arrangements.’ She describes a meeting on 19 September 2017 in Jordan to ‘discuss the potential process’ for PRS from Lebanon and Jordan. She repeats almost word for word the language of the second part of paragraph 18. There was a further meeting in Jordan on 30 October 2017. She and representatives of UNRWA and UNHCR were present. The purpose of the meeting was to confirm the process described in paragraph 17 and to identify and resolve other practical issues. The Home Office is continuing to work with partners in the region, ‘subject to their mandates to ensure the successful resettlement of those eligible under the expanded criteria’. At paragraph 24, she says that UNRWA and UNHCR have confirmed that that is an accurate summary of the meeting, and, at paragraph 25, that they have seen a copy of the witness statement and have confirmed ‘so far as it describes their processes, that it is true’.

The detailed grounds provoked, on 19 April 2018, a request by the Claimants for further information and disclosure. GLD replied on 5 June 2018. A table was attached to that response, covering the period between 1 January 2011 and 10 May 2018. It showed that 10 Palestine refugees had been referred under the Scheme to the Secretary of State by UNHCR, including one from Lebanon. There were none from Jordan. 112 had been referred from Iraq under the VCRS, and 140 from Iraq under the Gateway Scheme.

On 19 June 2018, a substantive hearing listed for 3 July 2018 was adjourned by consent. A further hearing was listed for December 2018. The Claimants applied to rely on further evidence, which showed that their attempts individually to approach UNHCR and UNRWA (on the basis outlined in the Secretary of State’s detailed grounds and in the witness statement of Ms King-Fisher) had been rebuffed by both organisations. That application was resisted by the Secretary of State. In a letter dated 31 October 2018, LD asked the Court to take into account their further representations in support of that application. LD also explained that UNRWA had emailed LD. It said that it had no resettlement mandate and confirmed the exceptional criteria it applies when deciding whether to refer people to UNHCR, but had offered to meet the Claimants in Lebanon. LD said it was not clear that the meetings would provide appropriate relief, but were prepared for the December hearing to be re-listed, since the Secretary of State needed more time to respond to the new evidence.

On 2 November 2018 Lang J gave the Claimants permission to rely on four new witness statements. She observed that the contents of the witness statements were relevant to the Secretary of State’s defence, and that they were ‘a cause for concern’. LD explained in a witness statement dated 4 September 2018 that they were not asking UNHCR or

On 3 December 2018, Ms King-Fisher signed a witness statement described as her third witness statement; it was, in fact, her second. She had tried to investigate whether the Claimants’ account of their contacts with UNRWA and UNHCR in Beirut were accurate. UNRWA had confirmed that the Claimants were told that UNRWA could not refer them to UNHCR. UNRWA have ‘subsequently reached out to the individuals to understand whether there are any obstacles to them receiving UNRWA assistance and whether there is anything further that UNRWA can do in this regard’. UNHCR would not respond to the witness statements.

She repeated, in paragraph 10, what she said the Secretary of State’s position was. UNRWA has a ‘general process’ by which ‘it may refer Palestine refugees experiencing exceptional protection needs or vulnerabilities, and requiring additional assistance, in one of its areas of operation to other partners. This is done on a strictly humanitarian and case-by-case basis, in view of the humanitarian imperative and in deference to an individual’s freedom to seek and pursue assistance that best responds to their needs. In this context, referrals may be to UNHCR. It is for UNHCR, in such cases, to decide

On 3 April GLD wrote to LD. GLD maintained the legal position set out in the summary grounds, but considered that the court need not be troubled by all those issues, ‘for example the ministerial authorisation point, which no longer bear on the points which are in dispute’. Those points are said to ‘remain the Claimants’’ ability to access the scheme in practical terms given UNRWA’s involvement and their suggestion, as we understand it, that the UK ought to amend the scheme to enable them to access it’. Now that the issues had narrowed, they planned to serve a further witness statement from Ms King-Fisher updating the court and to explain why ‘the UK does not accept direct applications for resettlement’.

On 4 April 2019, UNRWA’s Department of Legal Affairs produced a note. The note described UNRWA’s limited mandate and its provision of services in five fields of operation, including Lebanon. In the course of carrying out its mandate, UNRWA ‘may identify Palestine refugees (including Palestine refugees from Syria, within Jordan or Lebanon) as high-risk cases with exceptional protection needs which it is unable to address directly’.

UNRWA does not process applications for referrals. But, if in the course of carrying out its mandate, ‘a Palestine refugee is found to be a high-risk case with exceptional protection needs, then UNRWA may consider referral to a relevant partner organization on a strictly humanitarian and case-by-case basis given the humanitarian imperative and in deference to an individual’s freedom to seek and pursue assistance that best responds to their needs. It is for the partner organization to decide what further assistance to provide, if any. Given UNRWA’s mandate, its limitations and responsibilities, referrals can only exceptionally be instigated and it is not possible for Palestine refugees to apply for referrals, including to UNHCR, through UNRWA’.

The note then describes external referrals to partners and external service providers, for example, for specialist medical care. Apart from referrals for service provision,

The note continues that where a Palestine refugee is identified by UNRWA as a highrisk case with exceptional protection needs and UNRWA does not have the capacity to address the concern and avert the imminent harm (e.g. a Palestine refugee faces a real and credible threat to his/her life) then UNRWA will consider all possible options in view of the exigency of the situation. This will include an assessment of possible referrals to UN entities or other organizations with a protection mandate’.

On 5 April 2019, LD wrote to GLD. One of the Claimants had emailed UNHCR in Lebanon. The email had bounced back, with a message that registration for Syrians with UNHCR had been suspended from 5 May 2015 because of instructions from the government of Lebanon. LD asked GLD some questions about that. I note that the email also encouraged its recipient to call UNHCR to schedule a meeting.

On 25 April 2019, LD wrote to GLD about the meeting between the Claimants and UNRWA. LD understood that UNRWA had told GLD, as it had told LD, that they had assessed each Claimant and had concluded that they could not give them any more help. They said that the difficulties faced by the Claimants were common to many Palestine refugees fleeing the conflict in Syria, or more generally. They sent a note, which GLD understood the Home Office also had. LD’s understanding was that UNRWA would not be referring the Claimants to UNHCR. GLD was asked to confirm that it had been told the result of the assessment and had the note. They asked why it had not already been disclosed by GLD, pursuant to its duty of candour.

That prompted a letter dated 25 April 2019 from GLD. GLD said that it understood that the Claimants had had a meeting with UNRWA in January 2019. That meeting was not referred to in LD’s letter of 5 April. UNRWA’s process was set out in a note dated 4 April 2019 from UNRWA Department of Legal Affairs. That note is said to show that ‘the process of possible referrals from UNRWA is entirely consistent with the process we have previously described in our evidence’. It seemed obvious that the Claimants’ meeting with UNRWA should be before the court.

GLD’s letter also attached Ms King-Fisher’s ‘fourth’ witness statement, dated 25 April 2019, and dealt with the suspension of registrations. The Secretary of State was said to have been ‘well aware’ of that. The suspension of registration related to Syrian refugees who arrived in Lebanon after 5 May 2015. It did not mean that those already registered by that date could not be processed. UNHCR was still processing refugees who were registered in Lebanon, and referring them, where appropriate, to resettlement states. Since the Claimants were not Syrians, the suspension did not affect them at all. In any event, the Secretary of State had not suggested that they should register directly with

In paragraph 2 of her further witness statement, Ms King-Fisher refers to GLD’s letter dated 25 April 2019. That letter accurately reflected her understanding. She said that the Government does not accept direct applications for resettlement under the Scheme but relies on ‘identification of suitable cases by [UNHCR] in accordance with established criteria’. In paragraph 4, she said that the United Kingdom has a ‘wellestablished relationship with the UNHCR in identifying’ people in camps, informal settlements and host communities who would benefit most from resettlement in the United Kingdom. The work UNHCR can do is described in a briefing paper dated 7 March 2016 and in another document in the Claimants’ bundle. In paragraph 5 she says that UNHCR is ‘better able’ to do this, but does not identify the implicit comparator. She describes UNHCR’s ‘very large number of locally engaged and international staff throughout the regions where it operates and is able to engage with’ many people ‘in a way that simply is not open to United Kingdom officials’. It uses its ‘operational expertise’ to support the United Kingdom’s resettlement schemes and those of other states. That is why the Government does not accept direct applications.

In paragraph 7 she says that there was no ‘formal Public Sector Equality Duty consideration’ when the Scheme was introduced and then ‘ramped up’ in 2015. ‘This was because of the speed at which the scheme had to be developed and then rolled out. However, some consideration was given to it at the time’. When the Scheme was expanded in 2017, a PES was created. She attaches it. I have already described it.

There was further correspondence between solicitors. On 1 May 2019, GLD sent LD an email. It attached figures about referrals between 1 January 2011 and January or April 2019. It showed that one Palestinian had been referred by UNHCR under the Scheme, and three from Jordan. The referral from Lebanon was not registered with UNRWA. 18 referrals in all had been made; five from Egypt, eight from Iraq, and one from Turkey. More had been referred under the VCRS and Gateway Scheme, but they were all from Iraq (apart from 11 from Syria).

Part 2 of the 2010 Act is entitled ‘Equality: Key Concepts’. Chapter 1 is headed ‘Protected Characteristics’. Section 4 lists the protected characteristics. They include race. Section 9(1)(b) provides that race includes nationality. The 2010 Act does not create any hierarchy of protected characteristics. The language and structure of the 2010 Act suggest, rather, that each ranks equally with the others.

Chapter 2 is headed ‘Prohibited Conduct’. Section 13 defines direct discrimination.

Section 23 is headed ‘Comparison by reference to circumstances’. Section 23(1) provides ‘On a comparison of cases for the purposes of section 13, 14 or 19, there must be no material difference between the circumstances relating to each case’.

Part 3 is entitled ‘Services and Public Functions’. So far as is relevant, section 29 provides:

Section 30 provides:

There are provisions similar to section 29(10) and 30(6) in sections 81(6) and 82(7). I do not know if there are others.

One of the statutory predecessors of the 2010 Act was the Race Relations Act 1976 (‘the RRA’). When the RRA was first enacted, Part III dealt with discrimination in fields other than employment. Section 20 dealt with the provision of goods and services. Section 27 contained a territorial limit on Part III.

Part III was amended in 2001 by the enactment, among other things, of section 19B, which made it unlawful for a public authority to discriminate when carrying out its functions. Section 19D enacted an exception for certain acts in immigration and nationality cases. Section 19D was amended in 2002 and in 2004. Section 27 of the RRA was also amended in 2001 by the insertion of section 27(1A). That provided, ‘In its application in relation to granting entry clearance (within the meaning of the Immigration Act 1971), section 19B applies in relation to acts done outside the United Kingdom, as well as those done within Great Britain.’ Section 27(1A) is the clear statutory predecessor of section 29(9).

Section 149(1) of the 2010 Act obliges a public authority, ‘in the exercise of its functions’, to have ‘due regard’ to the equality needs listed in section 149(1)(a), (b) and (c). Those are the needs to:

Section 149(3) explains that having due regard to the need described in paragraph (b)

Section 149(5) explains that having due regard to the need described in paragraph (c)

There have been many decisions about the scope of section 149. Some were cited in counsels’ skeleton arguments. There was no disagreement about the relevant principles. There are five key features of those decisions which are relevant to this case.

Section 217(1) of the 2010 Act provides that the 2010 Act ‘forms part of the law of England and Wales’.

Schedule 3 is enacted by section 31. Paragraph 17 of Schedule 3 applies to discrimination on grounds of nationality, or ethnic or national origins (paragraph 17(1)). Paragraph 17(2) provides that section 29 does not apply to anything done by a relevant person in the exercise of functions exercisable by virtue of a relevant enactment. ‘Relevant person’ and ‘relevant enactment’ are defined in paragraph 17(3) and 17(5). ‘Relevant person’ includes a person acting in accordance with a relevant authorisation (defined in paragraph 17(4)). These provisions are the source of the power to make the Authorisation.

Section 149(9) enacts Schedule 18. Paragraph 2(1) provides that, in relation to the exercise of immigration and nationality functions, section 1491(b) has effect as if it did not apply to the protected characteristic of race. ‘Immigration and nationality’ functions are defined in paragraph 2(2). The phrase means, in effects, functions which are exercisable ‘by virtue of’ the statutes there listed.

Part 3

The territorial reach of Part 3 was considered by the Divisional Court in Hottak v

The claimants accepted that the ‘immigration aspects of the Afghan Scheme would fall outside the scope of section 29 by virtue of the exception…in paragraph 17 of Schedule 3’. That was ‘a significant restriction’, because the most significant aspect of a comparison between the schemes that applied to Iraq and Afghanistan was that the opportunities to settle in the United Kingdom under the Afghan scheme were more limited (judgment, paragraph 27).

Burnett LJ (as he then was), giving the judgment of the Court, referred in paragraph 30 to a line of employment cases in which the House of Lords and the Supreme Court have considered the territorial reach of employment rights, such as the right not to be unfairly dismissed. He said that the analysis was based on the nature of the connection between the employment in question and the United Kingdom. Counsel ‘at least tacitly’ accepted that the same approach should be taken to section 39 of the 2010 Act (paragraph 31), although the claimants’ counsel hinted in his reply that section 29 might have a greater territorial reach than employment rights.

In paragraphs 33-41, Burnett LJ summarised the reasoning of the House of Lords in Lawson v Serco Limited [2006] UKHL 6; [2006] ICR 250 and of the Supreme Court in Duncombe v Secretary of State for Children Schools and Families (No 2) [2011] UKSC36; [2011] ICR 1312 and in Ravat v Halliburton Manufacturing Service Limited [2012] UKSC 1; [2012] ICR 389. He held that the only connection between the claimants’ employment and Great Britain was the identity of their employer (paragraph

In paragraph 47, he considered the relationship between Parts 3 and 5. Section 28(2)(a) provides that Part 3 does not apply to discrimination, victimisation, harassment which are prohibited by Part 5, or which would be prohibited but for an express exception. He said that a fundamental difficulty with the Part 3 claim was that the purpose of section 28 is to ensure that no claim can be brought under Part 3 if there is, or, but for an express exception, would be, a claim under Part 5. If his conclusion about the territorial reach of section 39(2) was correct, the claimants had not failed because of an express statutory exception, but because of the territorial argument. He asked, rhetorically, whether Parliament could have intended a claim which is an employment claim, but which is outside the territorial reach of Part 5 nevertheless to be within the territorial reach of Part 3. That, he thought, would be an anomalous result, and ‘cannot have been within the contemplation of Parliament’.

There are two distinct issues here; first, the territorial reach of Part 5, and second, the scope of the exclusion in section 28(2)(a). The answer to the Divisional Court’s rhetorical question may be that its conclusion on the territorial question meant that the claimants’ complaint did not concern discrimination which was prohibited under Part 5. Section 28(2)(a) is an exclusion and should be construed strictly. The consequence of that is that the words of section 28(2)(a) did not in limine prevent the Divisional Court from considering the Part 3 claim. There is nothing in the language of section 28, however, to stop the conclusion on the territorial reach of Part 5 being read across to Part 3. The better view, however, may simply be that of Sir Colin Rimer in the Court of Appeal. It is that the effect of section 28 is that a work-related discrimination claim can only be brought under Part 5, and cannot be brought under Part 3 (see paragraph 69 of his judgment in the Court of Appeal).

In paragraph 48, the Divisional Court considered the territorial reach of section 29. It did not express a clear view on this point in paragraph 48. In paragraph 49, it said that it was clear that Parliament cannot have intended that employment-related issues, which are not subject to Part 5 on territorial grounds could nevertheless fall within section 29(6). ‘The contrary conclusion would produce a nonsense’.

The Divisional Court dismissed the application for judicial review apart from declaring that the Secretary of State had failed to have due regard to section 149(b) and (c) when formulating the scheme.

Sir Colin Rimer (giving a judgment with which the other members of the Court of Appeal agreed), considered, as had the Divisional Court, the authorities on unfair dismissal (paragraphs 21-33). In paragraph 46, Sir Colin Rimer said that he was not persuaded that ‘the claimants’ case is one that shows a sufficiently strong connection between Great Britain and the claimants’ employment relationship to justify a presumption that Parliament must have intended Part 5 of the 2010 Act to apply to [it].’ He expressly rejected a submission that discrimination claims should have a wider territorial reach than employment claims (paragraphs 47-48). Sir Colin Rimer held that the fact that the claimants’ employer was based in Britain was a sine qua non for their claim, but not enough to establish the necessary connection (paragraphs 49-57). A claimant who lived and was based abroad, worked exclusively abroad, was not a British citizen, was recruited abroad, whose contract was not governed by the law of England

In paragraph 69, he said that a work-related discrimination claim can only be brought under Part 5, and not under Part 3. If the claimants could not invoke Part 5 (because Parliament did not intend Part 5 to extend to their employment in Afghanistan), he would have thought it surprising that Parliament could nevertheless had intended that they could bring a claim under Part 3. If that was ‘to put the matter too broadly’, he would ‘accept anyway Mr Swift’s submission that section 29(6) should not be interpreted as extending to claim other than in respect of the exercise of public functions in Great Britain. I would not accept that there is any warrant for imputing to Parliament an intention to extend it to claims based on the extra-territorial effect of the exercise of public functions.’

I should also mention Roma Rights, on which Mr Husain relied. In that case the claimant challenged the operation in practice by immigration officers at Prague Airport of paragraph 17A of the Immigration Rules (HC 395 as amended). Paragraph 17A permitted, but did not oblige, immigration officers who were outside the United Kingdom to grant leave to enter to a person who was outside the United Kingdom. The claimant’s case was that Roma applicants were questioned for longer, and more intrusively, than non-Roma applicants, and that far more applications from Roma applicants were refused than applications from non-Roma applicants.

One of the claimant’s arguments was that this breached section 19B of the RRA. The House of Lords held that the operation created a significant risk that immigration officers, consciously, or subconsciously, would treat Roma applicants less favourably than non-Roma applicants, because Roma were more likely to make an application for asylum and therefore more likely to make a false application for asylum. Specific instructions were required to avert that risk and had not been given. The operation therefore discriminated directly against Roma.

It is clear from paragraph 72 of Baroness Hale’s speech that the claimant’s complaint concerned the process of questioning which led directly to the refusal or grant of entry clearance by immigration officers at Prague Airport.

In paragraph 76, she said that ‘It is now unlawful for a public authority to discriminate on racial grounds in carrying out any of its functions’. (a) Section 149

The Divisional Court considered a claim about section 149 in paragraphs 57-61 of Hottak. Two factors limited the scope of section 149 on the facts. First, if neither section 39(2) or 29(6) was in play, section 149(1)(a) was not relevant. Second, section 149(1)(b) could have no application to the immigration aspects of the policy (as the claimants accepted). The reason for this (as it is summarised in paragraph 24 of the judgment) was that paragraph 17 of Schedule 3 ‘has the effect of authorising the discrimination on the grounds of nationality’ when that is required by ‘the Immigration Act and the Immigration Rules’, and (as summarised in paragraph 57) ‘Schedule 18 provides, in relation to the exercise of immigration functions, that section 149(1)(a) is also not engaged in relation to immigration decisions dictated by legislation and the rules’.

Burnett LJ held in paragraph 60 that the scheme of section 149 was that it applied ‘by reference to the functions of the relevant body’. He had quoted, in paragraph 59, section 150(3) and (4). He said that ‘it did not matter…that the policy may have an impact wholly or partly outside Great Britain.’

In Hoareau v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) the Divisional Court considered a challenge to the defendant’s decision not to support the resettlement of the Chagossians in the British Indian Ocean Territory, but to offer them further compensation instead. One of the claimants’ arguments was that the defendant had not complied with section 149. The defendant accepted that section 149 applied to the decision to offer support because that decision was taken in the United Kingdom even though it applied to people and territory outside the United Kingdom (paragraph 153). The Defendant argued, however, that section 149 did not apply to the resettlement decision.

It was common ground that section 149(1)(a) did not apply because ‘that part of the Equality Act is confined to the United Kingdom’ (paragraph 154). The Divisional Court said that section 117 did not ‘govern the geographical scope of the functions which may be covered by [the 2010 Act], in particular the public functions…in section 149’. In paragraph 159, the Divisional Court said that the functions in the current case did not fall in any of the exceptions. That view was said to be supported to some extent by paragraph 60 of the judgment in Hottak in the Divisional Court (see paragraph 89 above).

Indirect discrimination