Ms. Fatima Ahmed Benkharbouche (1st Appellant/Claimant) Ms. Minah Janah (2nd Appellant/Claimant) v Embassy of the Republic of Sudan Libya (Cross-Appellant/ Respondent) The Secretary of State for Foreign and Commonwealth Affairs (1st Intervener) 4A Law (2nd Intervener) The Aire Centre (3rd Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Dyson,Lady Justice Arden,Lord Justice Lloyd Jones |
| Judgment Date | 05 February 2015 |
| Neutral Citation | [2015] EWCA Civ 33 |
| Docket Number | Case No: A2/2013/3062 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2015 |
[2015] EWCA Civ 33
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Hon. Mr. Justice Langstaff, President
UKEAT/0401/12/GE
UKEAT/0020/13/GE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Dyson, MASTER OF THE ROLLS
Lady Justice Arden
and
Lord Justice Lloyd Jones
Case No: A2/2013/3062
and
Mr. Timothy Otty QC and Mr. Paul Luckhurst (instructed by Anti Trafficking and Labour Exploitation Unit at Islington Law Centre) for the Appellants/Claimants
The Respondent did not appear and was not represented
Mr. Toby Landau QC, Prof. Dan Sarooshi and Mr. Peter Webster (instructed by MS-Legal Solicitors) for the Cross-Appellant/Respondent
Mr. Tim Eicke QC and Ms. Jessica Wells (instructed by The Treasury Solicitor) for the 1 st Intervener
Mr. Arfan Khan and Mr. Tahir Ashraf (instructed by 4A Law) for the 2 nd Intervener
Mr. Aidan O'Neill QC (Scotland) (instructed by Freshfields Bruckhaus Deringer LLP) for the 3 rd Intervener
Hearing dates: 24 th–27 th November 2014
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| TABLE OF CONTENTS | Paragraph |
| I. INTRODUCTION | 1 |
| II. STATE IMMUNITY | 6 |
| A. When is Article 6 engaged? | 11 |
| B. The application of Article 6 to embassy employment disputes | 22 |
| C. Section 16(1)(a), State Immunity Act, 1978 | 31 |
| 32 | |
| 2. Is a rule of the breadth of section 16(1)(a), State Immunity Act required by international law? | |
| (1) International conventions | |
| (a) European Convention on State Immunity, 1972 | 33 |
| 35 | |
| (c) UN Convention on Jurisdictional Immunities of States and their Property, 2004 | 36 |
| (2) State practice | 41 |
| (3) Conclusion on whether section 16(1)(a), State Immunity Act is required by international law | 53 |
| D. Section 4(2)(b), State Immunity Act, 1978 | 54 |
| E. Remedies in respect of infringement of ECHR | 67 |
| IV. THE EU LAW CLAIMS AND THE EU CHARTER | 69 |
| A. Horizontal Direct Effect | 76 |
| B. Should the court decline to disapply sections 4(2)(b) and 16(1)(a), State Immunity Act on the grounds that it is not clear what rule applies in its place as a matter of international law? | 82 |
| V. CONCLUSION | 86 |
THE MASTER OF THE ROLLS:
I. INTRODUCTION
This is the judgment of the court. Paragraphs 2 to 68 have been substantially written by Lloyd Jones L.J. and paragraphs 69 to 85 have been substantially written by Arden L.J.
These appeals raise the question whether a member of the service staff of a foreign diplomatic mission to the United Kingdom may bring proceedings in this jurisdiction against the employer state to assert employment rights or whether such a claim is barred by state immunity. This has led, in turn, to a consideration of the compatibility of the State Immunity Act 1978 ("SIA") with Article 6, European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") and Article 47, Charter of Fundamental Rights of the European Union ("EU Charter").
Ms. Benkharbouche, a Moroccan national, was employed as a cook at the Sudanese embassy in London. She was dismissed and brought claims against the embassy for unfair dismissal, failure to pay the minimum wage and breach of the Working Time Regulations 1998. The embassy claimed immunity under section 1 SIA. Employment Judge Deol upheld the plea of immunity and dismissed the claims. He considered that the claims were based on an employment relationship of a private rather than a public nature and therefore came potentially within the ambit of Article 6. He also accepted that there was a potential inconsistency between Article 6 and the blanket immunity conferred by the SIA. However, in his view section 16(1)(a) SIA, which excludes from the exception to immunity under section 4 proceedings concerning the employment of the members of a mission, could not be read down in accordance with section 3(1), Human Rights Act 1998 (" HRA") to permit the claim. He also rejected the submission that he should disapply the SIA, since it would be beyond the powers of the tribunal to do so and he did not consider that Article 47 provided a means of enforcing EU rights over and above that provided by the HRA.
Ms. Janah, a Moroccan national who had lived in the United Kingdom since 2005, was employed as a member of the domestic staff of the Libyan embassy in London where her duties included cooking, cleaning, laundering, shopping and serving meals. She was dismissed and brought claims against Libya for unfair dismissal, arrears of pay, racial discrimination and harassment and breach of the Working Time Regulations 1998. Libya claimed state immunity under section 1 SIA. Employment Judge Henderson upheld the plea of immunity and dismissed the claims. It was conceded that Ms. Janah was not habitually resident in the United Kingdom at the time her contract of employment was made with the result that section 4(2) SIA disapplied the exception to immunity created by section 4(1). The employment judge felt unable to decide whether applying section 4(2) to Ms. Janah's case would infringe Article 6. However, she concluded that the grant of immunity pursuant to section 16 engaged Article 6 and that that right had been denied. However, the statutory provisions could not, in her view, be read down so as to accord with Article 6 since to do so would depart substantially from a fundamental feature of the SIA. Furthermore, the tribunal could not decline to give effect to the provisions of the SIA. Although Article 47 was part of national law and directly effective, she considered that it was not for the tribunal to consider what she regarded as a freestanding complaint under EU law. She also considered that there was significant doubt over the enforceability of the EU Charter before the courts of the United Kingdom.
Appeals from the two decisions were heard together by Langstaff J., the President of the Employment Appeal Tribunal. ( Benkharbouche v. Embassy of the Republic of Sudan; Janah v. Libya [2014] ICR 169.) There, as before the tribunals, it was common ground that the SIA on its face appeared to grant procedural immunity from suit. The issues on the appeal were, rather, (a) whether the claims engaged Article 6, (b) if so, whether the statutory provisions could be interpreted in a manner consistent with Article 6, and (c) if not, whether the statutory provisions could be set aside. The President considered that the exercise of jurisdiction over these disputes would not interfere with any public governmental function of the respondent states and although the argument that the SIA struck an appropriate balance might at one stage in recent history have provided a sufficient answer, it no longer did so in the light of the developing extent of the restrictions on state immunity. Accordingly he considered that there had been a breach of Article 6 insofar as section 16 SIA had been applied. He left open the question whether the application of section 4(2)(b) SIA to these claims would also infringe Article 6. Proceeding on the assumption that the application of both of these provisions would infringe Article 6, he considered that they could not be read down in accordance with section 3(1) HRA. However, the provisions of the SIA were also in conflict with the right of access to a court under Article 47 EU Charter which was a general principle and a fundamental right in EU law. To the extent that the employment rights asserted were within the material scope of EU law, namely the claims of both claimants in respect of breach of the Working Time Regulations 1998 and the claim by Ms. Janah in respect of racial discrimination and harassment, the court was required to disapply the infringing provisions of the SIA pursuant to section 2(1), European Communities Act 1972.
II. STATE IMMUNITY
The law of state immunity in the United Kingdom is contained, subject to certain limited exceptions, in the SIA. The Act made new provision with respect to proceedings in the United Kingdom against other states. It replaced the common law which until the 1970s had conferred an almost absolute immunity on foreign states but which in the period immediately prior to the enactment of the SIA had adopted a restrictive immunity limited to sovereign activities ( The Philippine Admiral [1977] AC 373; Trendtex Trading Corporation v. Central Bank of Nigeria [1977] QB 529). The Act was passed, inter alia, in order to enable the United Kingdom to ratify the European Convention on State Immunity 1972 ("ECSI"). That Convention embodied a restrictive doctrine of immunity and imposed a treaty obligation on contracting states to implement voluntarily judgments given against them. That scheme is reflected in the provisions of Part I SIA defining the areas of non-immunity and in Part II of the statute which relates to the recognition of judgments against the United Kingdom in other contracting States.
Section 1, SIA confers a general immunity from jurisdiction.
" Immunity from jurisdiction
1 General immunity from jurisdiction.
(1) A State is immune from the...
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