Basfar v Wong
| Jurisdiction | England & Wales |
| Judge | Lord Briggs,Lord Leggatt,Lord Stephens,Lord Hamblen,Lady Rose |
| Judgment Date | 06 July 2022 |
| Neutral Citation | [2022] UKSC 20 |
| Court | Supreme Court |
Lord Briggs
Lord Hamblen
Lord Leggatt
Lord Stephens
Lady Rose
Supreme Court
Trinity Term
On appeal from: UKEAT/0223/19/BA
Appellant
Timothy Otty QC
Paul Luckhurst
Professor Philippa Webb
Ishaani Shrivastava
(Instructed by Wilson Solicitors LLP)
Respondent
Mohinderpal Sethi QC
Sophia Berry
Bláthnaid Breslin
(Instructed by Reynold Porter Chamberlain LLP (London))
1 st Intervener (Kalayaan)
(written submissions only)
Tom Hickman QC
Flora Robertson
(Instructed by Deighton Pierce Glynn (London))
2 nd Intervener (United Nations Special Rapporteur on Trafficking in Persons especially Women and Children)
(written submissions only)
Professor Parosha Chandran
(Instructed by Duncan Lewis (London))
Heard on 13 and 14 October 2021
Lord Briggs AND( with whom Lord Stephens agrees)
Ms Josephine Wong (a national of the Philippines) is a migrant domestic worker who worked in the household of Mr Khalid Basfar, a member of the diplomatic staff of the mission of the Kingdom of Saudi Arabia in the United Kingdom. Ms Wong claims that she is a victim of human trafficking who was exploited by Mr Basfar and his family by being forced to work in circumstances of modern slavery. She has brought a claim against Mr Basfar in an employment tribunal for wages and breaches of employment rights. Mr Basfar has applied to have Ms Wong's claim against him struck out on the ground that he is immune from suit because of his diplomatic status.
Under the Vienna Convention on Diplomatic Relations 1961, diplomatic agents enjoy complete immunity from the criminal jurisdiction of the receiving state and are also generally immune from its civil jurisdiction. There is, however, an exception for civil claims relating to “any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”. The question raised on this appeal is whether exploiting a domestic worker in the manner alleged constitutes “exercising” a “commercial activity” within this exception.
The Supreme Court has considered this question before in Al-Malki v Reyes [2017] UKSC 61; [2019] AC 735. The facts alleged in Reyes were similar to the facts alleged here, but with one important difference: in Reyes the diplomat's posting ended during the litigation. The Court of Appeal held that the diplomat had immunity: [2015] EWCA Civ 32; [2016] 1 WLR 1785. This Court allowed an appeal on the ground that, after a diplomat's functions as a member of the mission have come to an end, immunity for past acts continues to subsist only for acts which were performed in the exercise of those functions — which the alleged acts were not. Having reached that conclusion, there was no need to decide whether, if he had still been in post, the diplomat would have had immunity. A minority of the Supreme Court expressed a clear view that he would. But a majority of the Court considered this to be very much in doubt.
In this case the question necessarily arises for decision, as Mr Basfar is still in post. The employment tribunal held that, on the facts alleged, Ms Wong's claim comes within the commercial activity exception to diplomatic immunity. The tribunal therefore refused to strike out the claim. The Employment Appeal Tribunal [2020] ICR 1185 (Soole J sitting alone) allowed Mr Basfar's appeal against this decision but issued a certificate that the case was suitable for an appeal by Ms Wong directly to the Supreme Court “leapfrogging” the Court of Appeal. This Court subsequently granted permission for such a leapfrog appeal.
There is evidence that exploitation of migrant domestic workers by foreign diplomats is a significant problem, so that the question raised on this appeal is one of general importance: see eg Reyes [2019] AC 735, para 59. To obtain a wider perspective, the Court has permitted two non-parties to intervene in the appeal by making written submissions. They are: Kalayaan, a charity that supports migrant domestic workers, some of whom have been trafficked; and the United Nations Special Rapporteur on Trafficking in Persons especially Women and Children (the “Special Rapporteur”).
The following facts are alleged by Ms Wong in her claim form. None of them has been admitted by Mr Basfar; but for present purposes we must assume them to be true so as to test Mr Basfar's argument that, even if the facts alleged are proved, the claim against him cannot succeed because he has diplomatic immunity.
Ms Wong alleges that she was first employed by the diplomatic household of Mr Basfar in November 2015 in Saudi Arabia. On 1 August 2016 she was brought to the United Kingdom to continue working for him here. To obtain a visa to enter the country, Ms Wong was provided with an employment contract stating that she was employed by Mr Basfar to work a maximum of eight hours a day, with one day off each week and one month off each year; she was to be provided with sleeping accommodation and paid the national minimum wage.
Ms Wong alleges that, after arriving in the UK, she was confined at all times to Mr Basfar's house except to take out the rubbish. She was held virtually incommunicado, being allowed to speak to her family only twice a year using Mr Basfar's mobile telephone. She was made to work from 7am to around 11.30pm each day, with no days off or rest breaks, and was required to wear a door-bell at all times so that she was at the family's beck and call 24 hours a day. She was shouted at incessantly and regularly called offensive names. When the family was at home, Ms Wong was only allowed to eat their left-over food; if they were out, she could cook something for herself.
After arriving in the UK, Ms Wong was paid nothing for seven months until Mr Basfar and his wife took her with them to Jeddah on their holiday in July 2017: during this trip she was paid 9,000 Saudi Riyals (approximately £1,800) for six months in one lump sum. This was a fraction of her contractual entitlement. After that, she was not paid again.
Ms Wong endured these abusive conditions until 24 May 2018, when she managed to escape.
The principle of legal immunity for diplomatic agents is a fundamental principle of national and international law, rightly described in a recent case as “one of the most important tenets of civilised and peaceable relations between nation states”: A Local Authority v AG [2020] EWFC 18; [2020] Fam 311, para 38 (Mostyn J). At the international level the relevant law is contained in articles 1, 22–24, 27–40 and 45 of the Vienna Convention on Diplomatic Relations 1961 (the “Diplomatic Convention”), to which 193 states are parties. Section 2(1) of the Diplomatic Privileges Act 1964 (the “1964 Act”) incorporates these provisions into UK domestic law.
As recorded in the fourth recital to the Diplomatic Convention, the purpose of diplomatic privileges and immunities “is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States”. To this end:
(i) the premises of the mission are inviolable (article 22);
(ii) all correspondence relating to the mission and its functions is inviolable and the diplomatic bag must not be opened or detained (article 27);
(iii) the person of a diplomatic agent is inviolable and he shall not be liable to any form of arrest or detention (article 29);
(iv) the premises of a diplomatic agent are inviolable, as are his papers, correspondence and (save in cases where he is not immune from civil jurisdiction) his property (article 30);
(v) a diplomatic agent enjoys immunity from the criminal jurisdiction and (with limited exceptions) the civil and administrative jurisdiction of the receiving state (article 31(1));
(vi) a diplomatic agent is not obliged to give evidence as a witness (article 31(2));
(vii) diplomatic immunity may be waived only by the sending state and not by the individual (article 32);
(viii) with limited exceptions, diplomatic agents are exempt from all dues and taxes in the receiving state (article 34);
(ix) the privileges and immunities enjoyed by a diplomatic agent extend to family members who form part of his household (article 37); and
(x) although such privileges and immunities normally cease when the functions of a diplomatic agent have come to an end, immunity continues to subsist with respect to acts performed in the exercise of his functions as a member of the mission (article 39(2)).
The key provision for present purposes is the exception to immunity from the civil jurisdiction of the receiving state provided for in article 31(1)(c) of the Diplomatic Convention. This exception applies in the case of:
“an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”
In Reyes this Court unanimously held that the employment and alleged acts of maltreatment of the claimant by the respondent diplomat were not performed “in the exercise of his functions as a member of the mission” within the meaning of article 39(2). As discussed by Lord Sumption (with whom the rest of the Court agreed on this point), a diplomatic agent's “functions as a member of the mission” in article 39(2) are the same as “his official functions” in article 31(1)(c) and are, in each case, those functions which the diplomatic agent performs for or on behalf of the sending state: see [2019] AC 735, para 20. The acts alleged in Reyes were plainly not done for or on behalf of Saudi Arabia (see para 48); and the same is equally true here.
It is not suggested that the alleged acts of Mr Basfar were a “professional”...
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