The Exclusion of Palestinians from the resettlement scheme is not found unlawful by the Supreme Court.
The Supreme Court has recently ruled that excluding Palestinians from the UK’s Vulnerable Persons Resettlement Scheme (“the Resettlement Scheme”) for refugees from Syria is not unlawful, in the case of R (on the application of Marouf) v Secretary of State for the Home Department [2023] UKSC 23.
Vulnerable Persons Resettlement Scheme (“the Resettlement Scheme”)
Launched in January 2014, the Scheme was designed to provide emergency sanctuary in the UK, outside the Immigration Rules, for displaced refugees who were particularly vulnerable. Priority would be given to survivors of torture and violence, and to women and children at risk or in need of medical care. The Resettlement Scheme provided refugees with a direct and safe route to the UK rather than them having to make the hazardous journey to Europe. Those admitted under the original Resettlement Scheme were granted five years’ humanitarian protection.
In its original form, the scheme was open to Syrian nationals only. It was broadened to include non-Syrian nationals in July 2017 and the status conferred on those settled here was changed to refugee status. That status attracted more rights and benefits than humanitarian protection, including easier access to higher education. The Secretary of State announced that up to the end of March 2017, 7,307 Syrians had been resettled in the UK, half of whom were children. The commitment was to resettle 20,000 refugees by 2020.
The UK’s resettlement scheme relied on the United Nations High Commissioner for Refugees (UNHCR) to identify and recommend refugees for resettlement in the UK. However, this excluded many Palestinian refugees residing in Syria because the UNHCR is not responsible for Palestinians. Instead, the responsibility for Palestinian refugees lies with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA).
Despite the fact that Palestinians in Syria were equally in need of protection and resettlement as other residents, the UK’s scheme excluded them, and it remains unclear whether this exclusion was intentional as the High Court found no evidence suggesting that the Home Secretary had considered the issue at all.
The unique position of Palestinians in refugee law adds complexity to the matter. Most Palestinians are legally stateless, and while UNRWA provides humanitarian assistance, it does not cover resettlement abroad.
Case background
In this case, the appellant, Ms. Marouf, a Palestinian, was one of the registered refugees with UNRWA in Syria but had to flee to Lebanon due to the conflict. Had she been Syrian, she could have applied for resettlement in the UK under the Vulnerable Persons Resettlement Scheme. Ms. Marouf asserted that she should be eligible to come to the UK under the Resettlement Scheme.
Ms. Marouf challenged the scheme through a judicial review, arguing that it discriminated against Palestinians and was irrational, and that it breached the public sector equality duty, by discriminating based on race.
Public sector equality duty
The public sector equality duty, as per section 149(1) of the Equality Act 2010, requires public authorities to have due regard for eliminating discrimination, advancing equality of opportunity, and fostering good relations.
During the Judicial Review proceedings, the Judge in the first instance ruled:
- the claim for unlawful discrimination under section 29(6) Equality Act 2010 failed because the section did not have the extraterritorial effect on which the Appellant relied.
- As to the second ground of challenge, the Judge considered that she was bound by previous authority to hold that the public sector equality duty in section 149 did have extraterritorial effect.
- She held further on the facts that the Secretary of State had not had due regard to that duty to advance equality of opportunity for Palestinian refugees, and so had been in breach of section 149(1)(b).
The Appellant appealed against the decision that there had been no indirect discrimination and the Secretary of State cross-appealed against the finding that there had been a breach of the public sector equality duty.
The Court of Appeal dismissed the Appellant’s appeal and allowed the cross-appeal. The Appellant was then subsequently granted permission to appeal to the Supreme Court only on the question of the extraterritorial effect of section 149. Permission was refused for any challenge to the finding that there has been no substantive unlawful discrimination against the Appellant.
Outcome of the case:
One of the protected characteristics is race. Previously, the High Court found that the Home Secretary did not consider advancing equality for Palestinian refugees like Ms. Marouf, which would render the scheme unlawful if the equality duty had extraterritorial effect.
However, the Supreme Court, in a single judgment delivered by Lady Rose, ruled that the public sector equality duty did not have extraterritorial effect.
The court cited a well-established presumption that legislation does not apply abroad unless explicitly stated. Lady Rose emphasized that public authorities listed in the Equality Act have responsibilities within their communities and that extending their accountability to overseas communities would require explicit parliamentary endorsement, which was lacking in this case.
The appeal was therefore dismissed.
Points to note in the future:
Though the outcome disappointed those seeking accountability for the global impact of the UK’s decisions, the judgment does not entirely preclude raising equality issues concerning people outside the UK. Lady Rose highlighted that public bodies still have a common law duty to consider all material factors before making decisions, including decisions implemented internationally. Thus, if inequality faced by people abroad with a specific characteristic is not adequately considered, a judicial review may still succeed.