Immigration: R (on the application of Hottak & Anor) v The Secretary of State for Foreign and Commonwealth Affairs & Anor [2015]

A link to the case can be found here.

This was a JR on behalf of two Afghan interpreters who had worked for the British government in Afghanistan as local support staff. They claimed that discrepancies between schemes (set up to provide benefits, for e.g. relocation packages) for them and their counterparts in the Iraq war contravened the Equality Act 2010 in two ways:

i) substantively, in that they were discriminated against on grounds of nationality (sections 39(2) and 29(6)) ; and
ii) procedurally, in that HM Government failed to comply with Public Sector Equality Duty (“PSED”) by not carrying out an Equality analysis (section 149(1)).‬

Discrimination was also argued under the common law. This failed, the HC holding that the case could not reach the necessary Wednesbury threshold on the facts.

The substantive claim failed on the grounds of territorial reach, it being held that the employment of local interpreters is bound by the law of the country in which they are employed, not of the employer, even when that employer is a State (see the discussion at §§ 26-49).

The procedural claim succeeded, however the HC accepted that recent work done to the scheme would be compliant with the PSED (§61). As such it was held that the best course of action was to make a declaration outlining the failures to take the PSED into consideration. The scheme was not quashed as the HC considered that would adversely impact those currently taking advantage from it and nor did they give a mandatory order requiring a fresh analysis of the PSED. ‬

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