united-kingdom discrimination visa ukraine
Vodafone offering lifetime free unlimited talk text and data to Ukrainian refugees - unlawful discrimination?
<p>This seems to me a flagrant violation of the human rights and equality acts. I mean at least if it is giving preferential treatment to Ukrainian rather than say Syrian refugees.</p>
<p>If I’m not mistaken isn’t nationality among the most ubiquitous of protected characteristics among anti discrimination legislation?</p>

<h2>No</h2>
<p>Section <a href="https://www.legislation.gov.uk/ukpga/2010/15/section/158" rel="nofollow noreferrer">158</a> of the Equality Act 2010 allows &quot;proportionate means&quot; to &quot;overcome or minimise ... disadvantage&quot;.</p>
<p>This is why charitable acts targeted at a particular nationality, race, gender etc. are not unlawful.</p>

<p>EDIT: This answer addresses a previous version of the question which has since been edited. The first part of the answer is still relevant, the second part I'll preserve here but can be skipped for the purposes of the current version of the question.</p>
<p>Jurisdiction: <a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a></p>
<p>There are really two questions in one here:</p>
<ol>
<li>Can a Vodafone (a private entity) engage in lawful positive discrimination on the basis of nationality?</li>
<li>Can Parliament lawfully pass Acts which amount to positive discrimination on the basis of nationality?</li>
</ol>
<p>To keep the question focussed, I'll address mainly the first (since that is the one in the title of your question) and just say a few things about the second.</p>
<h3>1. Can a private entity engage in lawful positive discrimination on the basis of nationality?</h3>
<p>As you've pointed out, the relevant Act here is the <a href="https://www.legislation.gov.uk/ukpga/2010/15/contents" rel="nofollow noreferrer">Equality Act 2010</a>. The starting point is Sections 4 and 9:</p>
<blockquote>
<p><strong>4</strong> The following characteristics are protected characteristics - [...] race; [...]</p>
<p><strong>9</strong> (1) Race includes - [...] nationality; [...]</p>
</blockquote>
<p>Sections 13 and 19 set out what is meant by discrimination (direct and indirect, respectively):</p>
<blockquote>
<p><strong>13</strong> (1) A person (A) discriminates against another (B) if, because of a
protected characteristic, A treats B less favourably than A treats or
would treat others.</p>
<p><strong>19</strong> (1) A person (A) discriminates against another (B) if A applies to
B a provision, criterion or practice which is discriminatory in
relation to a relevant protected characteristic of B's.</p>
</blockquote>
<p>Per section 19(3), race is a &quot;relevant protected characteristic&quot; for the purposes of section 19(1).</p>
<p>This raises the question of whether the above definitions capture the concept of positive discrimination (treating someone <em>more</em> favourably on the basis of a protected characteristic). Clearly they do. If you treat a person more favourably because of their nationality, then you treat a different person with a different nationality less favourably if you deny them the same benefit. In order to exclude positive discrimination from the definition, we need an express provision from Parliament to that effect, which we can see an example of in Section 13(3) in relation to disability:</p>
<blockquote>
<p><strong>13</strong> (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A
treats or would treat disabled persons more favourably than A treats
B.</p>
</blockquote>
<p>So far we've just defined discrimination. Just because something is discriminatory doesn't mean that it is <em>unlawful</em> discrimination. For that, we need to find a provision which makes the discrimination unlawful in a particular situation. Here's the relevant provision as it would relate to Vodafone:</p>
<blockquote>
<p><strong>29</strong> (2) A service-provider (A) must not, in providing the service, discriminate against a person (B) - (a) as to the terms on which A
provides the service to B; [...]; (c) by subjecting B to any other
detriment.</p>
</blockquote>
<p>The Act provides for exceptions in a number of different circumstances.</p>
<p>Typically the most relevant exception in such a case will be <a href="https://www.legislation.gov.uk/ukpga/2010/15/schedule/23" rel="nofollow noreferrer">Paragraph 1 of Schedule 23</a> (writing in square brackets added by me):</p>
<blockquote>
<p><strong>1</strong> (1) This paragraph applies to anything done — (a) in pursuance of an enactment; (b) in pursuance of an instrument made by a member of
the executive under an enactment; (c) to comply with a requirement
imposed (whether before or after the passing of this Act) by a member
of the executive by virtue of an enactment; (d) in pursuance of
arrangements made (whether before or after the passing of this Act) by
or with the approval of, or for the time being approved by, a Minister
of the Crown; (e) to comply with a condition imposed (whether before
or after the passing of this Act) by a Minister of the Crown.</p>
<p><strong>1</strong> (2) A person does not contravene Part 3 [which includes Section 29], 4, 5 or 6 by doing anything to which this paragraph applies which
discriminates against another because of the other's nationality.</p>
</blockquote>
<p>So, Vodafone can engage in positive discrimination towards Ukrainian customers, <em>if</em> it does so in pursuance of another Act or some action etc. of a minister in accordance with the above provisions. I'm not particularly aware of any other such Acts etc. which would provide an exception here, but I haven't actively looked for one. Certainly we can at least say that it is <em>possible</em> that Vodafone's offer to Ukrainians could be lawful under this exception.</p>
<p>Another exception can be found in Section 192:</p>
<blockquote>
<p>192 A person does not contravene this Act only by doing, for the
purpose of safeguarding national security, anything it is
proportionate to do for that purpose.</p>
</blockquote>
<p>It's hard to see that positive discrimination toward's Vodafone's Ukrainian customers could amount to proportionate safeguarding of national security. I think we can safely disregard this exception in this scenario while being aware that it could be applicable to other scenarios involving Ukraine.</p>
<h3>2. Can Parliament lawfully pass Acts which amount to positive discrimination on the basis of nationality?</h3>
<p>The starting point here is that Parliament can pass <em>absolutely any law that it likes</em>, due to the principle of <a href="https://en.wikipedia.org/wiki/Parliamentary_sovereignty" rel="nofollow noreferrer">Parliamentary sovereignty</a>. That includes the power to do something which contradicts something it did earlier (e.g. the Equality Act 2010). In general, when Parliament passes an Act which contradicts an earlier Act, then to the extent of the contradiction the recent Act <a href="https://en.wikipedia.org/wiki/Implied_repeal" rel="nofollow noreferrer">impliedly repeals</a> the earlier Act.</p>
<p>The situation potentially becomes more complex where the impliedly repealed Act is said to be &quot;constitutional&quot;. In such cases Parliament may need to explicitly [partially] repeal the older Act or amend it to remove the contradiction, but it is certainly within Parliament's power to do so lawfully.</p>
<p>Constitutional Acts include the <a href="https://www.legislation.gov.uk/ukpga/1998/42/contents" rel="nofollow noreferrer">Human Rights Act 1998</a>, an Act which imported much of the <a href="https://www.echr.coe.int/documents/convention_eng.pdf" rel="nofollow noreferrer">European Convention on Human Rights (ECHR)</a> into domestic law.</p>
<p>Article 14 of the ECHR provides:</p>
<blockquote>
<p>The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property,
birth or other status.</p>
</blockquote>
<p>Note however, the first few words of that Article. The ECHR doesn't prohibit discrimination <em>per se</em>, but rather says that a person is entitled to enjoy their <em>other</em> ECHR rights free of discrimination. Since there is nothing in the ECHR which gives a non-UK national the right to immigrate to the UK, there is no way to trigger Article 14 in a situation where the UK <em>does</em> allow someone to immigrate. Accordingly, Parliament is free to impose different terms on different nationalities when for example enacting visa schemes.</p>
