Diplomatic Immunity Denied by the UK Supreme Court in Domestic Servant Case
Kelley Drye Client Advisory
In Reyes v. Al-Malki decided on 18 October 2017, the UK Supreme Court held that a former foreign diplomatic agent is not entitled to immunity from civil jurisdiction in employment proceedings brought by a domestic servant who had worked in the diplomatic agent’s residence in London. By contrast, the Court of Appeal had considered that the diplomatic agent does enjoy immunity, and moreover that such an immunity does not infringe the plaintiff’s fundamental right of access to a court.
Ms. Reyes, a private servant within the meaning of Article 1(h) of the 1961 Vienna Convention on Diplomatic Relations (VCDR), was responsible for cleaning, helping in the kitchen and looking after the children while Mr. Al-Malki was accredited as a diplomatic agent to the United Kingdom. She alleged that during her employment she was required to work excessive hours, was not given proper accommodation, was prevented from leaving the house, and was paid nothing until after the termination of her employment upon her escape from the residence.
In the proceedings instituted in 2011 before the Employment Tribunal, Mr. Al-Malki relied on Article 31(1) of the VCDR, conferring immunity from civil jurisdiction on diplomatic agents. This immunity extends to private acts but is subject to three specific exceptions listed in Article 31(1). Ms. Reyes invoked the third exception (Article 31(1)(c)), whereby the immunity is not applicable where the proceedings concern ‘[a]n action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions’.
In its 2015 judgment, the Court of Appeal held that the defendant was effectively entitled to immunity under Article 31(1) as Ms. Reyes’ employment and treatment could not be characterized as a professional or commercial activity in the sense of Article 31(1)(c).
The Supreme Court appeared to be divided on this question of interpretation of Article 31(1)(c) as such. Whilst two members shared the view of the Court of Appeal, three others expressed doubts in this respect. More specifically, the two groups seemed to disagree about the possible impact of the fact – assumed by the Court – that the allegations made by Ms. Reyes amounted to trafficking in persons within the meaning of the 2000 Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
Nevertheless, the Supreme Court unanimously reached the conclusion that Mr. Al-Malki cannot, at any rate, invoke diplomatic immunity based on Article 31(1) of the VCDR since his posting in London came to an end in 2014 and he left the UK, hence Article 31(1) – which confers immunity only while the diplomatic agent is in post – is no longer applicable. As to the period of time after the cessation of the functions, Article 39(2) of the VCDR provides for a residual immunity ‘with respect to acts performed by [the diplomatic agent] in the exercise of his functions as a member of the mission’. The Supreme Court decided that the relevant acts in the case at hand were not performed in the exercise of diplomatic functions (as official functions of a diplomat cannot reasonably extend to the employment of domestic staff to carry out tasks such as those entrusted to Ms. Reyes), and that therefore Mr. Al-Malki was not entitled to residual immunity under Article 39(2).
It is worth noting that the argument pertaining to Article 39(2) of the VCDR was not discussed before the Court of Appeal, although at the time of the latter’s ruling the defendant’s functions as a diplomatic agent accredited to the UK had already come to an end. It is perhaps even more remarkable that, on this point, the Supreme Court took the date of its own judgment as a critical date to decide on the applicability of the immunity, while there would probably be grounds for considering that the diplomatic immunity should be assessed at the time when the court proceedings are commenced.
Whatever it may be, the conclusion reached by the Supreme Court as to the inapplicability of the immunity made it unnecessary for the Court to deal with the plaintiff’s alternative argument based on her right of access to a court as guaranteed in Article 6 of the European Convention on Human Rights (ECHR). Interestingly enough, the Court of Appeal had held, in this connection, that Mr. Al-Malki’s diplomatic immunity does not entail a disproportionate restriction on Ms. Reyes’ right of access to a court as such immunity ‘reflects generally recognised rules of public international law’ – a test which typically is used to determine the compatibility of State immunity with Article 6 ECHR, yet was indeed applied recently by the Belgian Supreme Court in a case concerning specifically diplomatic immunity.