Estrada v Al-Juffali (Secretary of State for Foreign and Commonwealth Affairs intervening)
| Jurisdiction | England & Wales |
| Judge | Master Of The Rolls,Lady Justice King,Lord Justice Hamblen |
| Judgment Date | 22 March 2016 |
| Neutral Citation | [2016] EWCA Civ 176 |
| Docket Number | Case No: B6/2016/0548 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 2016 |
[2016] EWCA Civ 176
The Master of the Rolls
Lady Justice King
and
Lord Justice Hamblen
Case No: B6/2016/0548
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
MR JUSTICE HAYDEN
FD14F00410
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Pointer QC, Martin Chamberlain QC and Nicholas Wilkinson (instructed by Mischon de Reya LLP) for the Appellant
Charles Howard QC, Tim Owen QC, Deepak Nagpal and Tom Hickman (instructed by Hughes Fowler Carruthers) for the Respondent
Tim Eicke QC, Jessica Wells and Guglielmo Verdirame (instructed by Government Legal Department) for the Intervener (intervening by written submissions only)
Hearing date: 03/03/2016
This is an appeal against the order of Hayden J dated 8 February 2016 dismissing the application of the appellant ("H") to strike out the claim of the respondent ("W") for financial relief pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 ("the 1984 Act"). H's application was made on the basis that he was entitled to immunity as Permanent Representative of St Lucia to the International Maritime Organisation ("IMO"), a position to which he was appointed on 1 April 2014. The judge held that (i) He is not entitled in principle to immunity because he had not discharged any functions as a Permanent Representative and his appointment was an "artificial construct" designed to defeat the jurisdiction of the court; and (ii) in any event, he is not entitled to immunity because he was "permanently resident" in the UK and so, if he was in principle entitled to immunity, it was only in respect of official acts performed in the exercise of his functions. In this appeal, H contends that both of these conclusions were wrong on the grounds that (i) he is entitled in principle to immunity and (ii) he is not permanently resident in the UK.
The parties were married on 18 September 2001. They have one daughter, who was born on 30 October 2002. During their marriage, they lived a cosmopolitan life. W has been based in the UK. H has been engaged in his substantial business interests, mostly in Saudi Arabia. He is a Saudi national and has never sought or been granted any extended or permanent rights to remain in the UK. The marriage broke down in 2012. H married again in February 2012. It will be necessary to examine the facts in more detail in relation to the question of whether he is permanently resident in the UK.
IS H ENTITLED TO IMMUNITY IN PRINCIPLE?
General International Framework
The IMO is an international organisation established by treaty and a specialised agency of the United Nations. As an international organisation, it has legal and operational autonomy which, inter alia, enables it to establish its own procedures for the appointment and accreditation of Permanent Representatives of Member States. The immunities and privileges of the IMO itself, its officials, and the Permanent Representatives of its Member States are governed, as a matter of international law, by a combination of the UN Convention on the Privileges and Immunities of Specialised Agencies ("the Specialised Agencies Convention") and the Headquarters Agreement between the UK and the IMO as amended by (i) the Exchange of Notes dated 20 January 1982 and (ii) the Exchange of Notes dated 4 January 2002 ("the Headquarters Agreement").
The UK's obligations under the Headquarters Agreement in relation to the immunities and privileges of Permanent Representatives to the IMO are given effect in domestic law by the International Maritime Organisation (Immunities and Privileges) Order 2002 (SI 2002/1826) ("the IMO Order").
The Vienna Convention on Diplomatic Relations ("the VCDR") codifies the rules for the exchange of embassies among sovereign States. It does not therefore govern the immunities and privileges of Permanent Representatives to the IMO (or of IMO officials). However, where the relevant rules of international or domestic law so require or permit, it is common ground that reference may be made to the VCDR in the determination of the nature and extent of the immunities and privileges conferred, as a matter of law, on Permanent Representatives. In the court below, the argument of W focussed on the VCDR, in particular Articles 38 and 39. It is now common ground that the relevant international instruments are the Specialised Agencies Convention and the Headquarters Agreement.
Material International and Domestic Law Provisions
The UK is required, as a matter of international law, to grant privileges and immunities to Personal Representatives of Member States to the IMO in accordance with the Specialised Agencies Convention and the Headquarters Agreement.
Article 13 bis of the Headquarters Agreement provides:
"(1) Every person designated by a Member of the Organisation as its Permanent Representative or Acting Permanent Representative and the resident members of its mission of diplomatic rank shall enjoy, for the term of their business with the Organisation, the privileges and immunities set out in Article V, Section 13 of the [Specialised Agencies Convention].
(2)…
(2A) In addition to the immunities and privileges specified in paragraphs (1) and (2) of the article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the terms of their business with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.
(3) The provisions of Article V, Sections 14 and 16 and of Article VII, Section 25 of the [Specialised Agencies Convention] shall apply to the persons mentioned in paragraph (1) of this Article. Following completion of the procedures laid down by Section 25 in respect of any person, the privileges and immunities of that person shall cease on expiry of a reasonable time in which to leave the United Kingdom.
(4) The Government shall be notified by the Secretary-General, in accordance with a procedure established by the Council, of the appointment of a Permanent Representative or an Acting Permanent Representative and of each member of the mission. Paragraphs (1) to (3) of this Article shall not apply to any person unless and until his name and status are duly notified to the Government,
(5)…Paragraphs (2) and (2A) shall not apply to any person who is permanently resident in the United Kingdom; paragraphs (1) and (2A) shall only apply to a person so resident while exercising his official functions."
Article V of the Specialised Agencies Convention provides for immunities from legal process for Personal Representatives of Member States.
Article 13 bis of the Headquarters Agreement is given effect in domestic law by the IMO Order, Article 15 of which provides:
"(1) Except in so far as in any particular case any privilege or immunity is waived by the Government of the member whom he represents, every person designated by a member of the Organisation as its Principal Permanent Representative or acting Principal Permanent Representative to the Organisation in the United Kingdom, and members of their family forming part of their household, shall enjoy for the term of his business with the Organisation:
(a) the like immunity for suit and legal process as is accorded to the head of a diplomatic mission;
(b) …
(c) …
(d) …
(e) …
(f) …
(g) …
Provided that sub-paragraphs (d) to (h) of this paragraph shall not apply to any person who is a permanent resident of the United Kingdom, and sub-paragraphs (a) to (c) shall apply to any such person only while he is exercising his official functions."
I accept the submission of the Secretary of State that "the like immunity from suit and legal process as is accorded to the head of a diplomatic mission" in Article 15(1)(a) of the IMO Order is a reference to the provisions of the VCDR establishing the nature and material scope of immunities, such as Article 31 (on the immunity from jurisdiction of diplomatic agents).
By contrast, other provisions of the VCDR, particularly those governing procedural aspects of acquiring immunity as a head of a diplomatic mission, are not those which the reference to "like immunity" in Article 15(1)(a) of the IMO Order is intended to import. As a consequence, Article 8(1), Article 38(1), Article 39(1) and Article 43 of the VCDR, each cited by the judge, are among the VCDR provisions which are not transposed or imported into the plane of UK/IMO relations.
I should, however, refer to Articles 31 and 39 of the VCDR. Article 31 provides that a diplomatic agent "shall enjoy immunity from suit" except in certain cases which is it not necessary to describe. Article 39 provides:
"1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed."
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a...
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