R (HRH Sultan of Pahang) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Smith,Lord Justice Moore-Bick |
| Judgment Date | 25 May 2011 |
| Neutral Citation | [2011] EWCA Civ 616 |
| Docket Number | Case No: C1/2010/1728 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2011 |
[2011] EWCA Civ 616
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT (Mr Justice Nicol)
REF NO: CO28452010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay,
Vice President of the Court of Appeal, Civil Division
Lady Justice Smith
and
Lord Justice Moore-Bick
Case No: C1/2010/1728
Mr Ian Macdonald QC and Ms Aileen McColgan (instructed by Messrs Grange & Castle) for the Appellant
Mr Steven Kovats QC (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 21 March 2011
The issue in this case is whether His Royal Highness the Sultan of Pahang (the Sultan), is subject to the immigration control laws of the United Kingdom. His case is that, by reason of state immunity, he is not. He seeks to challenge a decision contained in a letter written on behalf of the Secretary of State dated 2 December 2009 to the effect that he is. His claim was rejected in the Administrative Court on 8 July 2010, [2010] EWHC 2024 (Admin), when Nicol J refused him permission to apply for judicial review, as had Sales J on an earlier consideration of the papers.
Pahang is one of nine Sultanates within the Federation of Malaysia. The Sultan is "the Sovereign" of Pahang pursuant to Articles 2 and 3 of the Laws of the Constitution of Pahang. Complex provisions in the Constitution of Malaysia have the effect that the position of the Supreme Head of the Federation of Malaysia rotates between the rulers of the nine Sultanates. The Sultan was the Supreme Head of the Federation in the years 1979 – 1984. He has not been the Supreme Head since that time. Nevertheless, his case is that he is beyond the reach of United Kingdom immigration control by reason of state immunity either pursuant to statute or at common law. Nicol J rejected the statutory claim as a matter of construction and further held that common law no longer accommodates such a claim. I shall shortly explain why I consider that, within the four corners of its legal analysis, the judgment of Nicol J was correct. There is, however, another and more fundamental reason why I consider that the Sultan's case is misconceived. It is that, ultimately, the question of who is a Head of State such as to attract state immunity is a matter for the Secretary of State for Foreign and Commonwealth Affairs and not for this Court.
The statutory argument
The case for the Sultan is that he falls outside immigration control by reason of section 20(1) and possibly (5) of the State Immunity Act 1978 (the SIA). However, it is first necessary to set out the route to that conclusion.
Section 8(3) of the Immigration Act 1971 now provides:
"… the provisions of this Act relating to those who are not British citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent."
It is not suggested that the Sultan falls within that provision standing alone. Rather that he does so by way of its relationship with common law.
The SIA is primarily concerned with civil proceedings in the United Kingdom by or against other states. However, Part III, headed " Miscellaneous and Supplementary", begins with section 20, the material parts of which provide:
"(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to –
(a) a sovereign or other Head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants …
(3) Subject to any direction to the contrary by the Secretary of State, a person on whom immunities and privileges are conferred by virtue of subsection (1) above shall be entitled to the exemption conferred by section 8(3) of the Immigration Act 1971 …
(5) This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity."
Thus, the head of any state which enjoys immunities and privileges under Part I is equiparated with the head of a diplomatic mission and takes the benefit of, inter alia, section 8(3) of the Immigration Act 1971. The Sultan claims to be such a person. Moreover, I have included the references to families, households and servants because we are told that the Sultan's interest in these proceedings is mainly on behalf of his entourage and his wish that they enjoy the immunity. A claim by some of them to this effect has previously been rejected by the Asylum and Immigration Tribunal on 11 February 2009,
Section 21 of the SIA provides:
"A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question –
(a) whether any country is a State for the purposes of Part I of this Act, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head of government of a State …"
In the present case, there is a certificate, signed by the Director of Protocol at the FCO on 10 November 2008, in the following terms:
"Under the authority of Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs conferred upon me and in accordance with Section 4 of the Diplomatic Privileges Act 1964 as applied by section 20(1) of the State Immunity Act 1978, I … hereby certify that:
Pahang is a constituent territory of Malaysia which is a federal state. [The Sultan] is the Sultan of the territory of Pahang and is not the Head of State of Malaysia.
His Majesty Al-Wathiqu Billah Tuanku Mizan Zainal Abidin Al-Marhum Sultan Mahmud Al-Muktafi Billah Shah is the Head of State of Malaysia."
"Constituent territories of a federal State" also receive attention in section 14(5) of the SIA which, having provided that section 12 (Service process and judgments in default of appearance) applies to such constituent territories, then provides more generally:
"Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State."
The Sultan requested the making of such an Order in relation to Pahang but this was declined by the Secretary of State in a letter dated 7 December 2009.
In these circumstances, it is difficult to see how the SIA could support the Sultan's case. It was held in Pocket Kings Ltd v Safenames [2010] Ch 438, correctly in my view, that the concepts of "constituent territory" and "state" are mutually exclusive for the purposes of the Act. Nicol J analysed the position as follows (at paragraph 11–12):
"It is to be inferred from the Secretary of State's certificate … that Pahang is not a State for the purposes of the 1978 Act.
That being so, in accordance with section 20(5), Pahang is not a State upon which immunities and privileges are conferred by Part I of the Act. On its face section 20(5) would then lead to the conclusion that the claimant is not the sovereign or other Head of State on which immunities and privileges are conferred by Part I of the Act and therefore the extension of section 8(3) of the Immigration Act 1971 to those persons referred to in section 20 of the 1978 Act cannot assist him."
I respectfully agree with this analysis.
On behalf of the Sultan, Mr Ian Macdonald QC seeks to circumvent it by submitting that the power of the Secretary of State to certify, although set out in section 21 which is in Part III of the SIA, is a power to certify only for the purposes of Part I, which does not include section 20. I disagree. Section 21 contains no such limitation and section 20(5) incorporates, for the purposes of section 20, the concept of a state on which immunities and privileges are conferred by Part I. I do not see how a territory which is not a state on which immunities and privileges are conferred by Part I may nevertheless be a state, the head of which can avail himself of the provisions of section 20.
Mr Macdonald's alternative argument is that, notwithstanding the provisions of the SIA, there is still room for state immunity to be established at common law. The SIA is not all-embracing. Section 16 provides that Part I does not apply in a number of circumstances, including criminal proceedings. The immunity of a head of state in such circumstances continues to be governed by customary international law and this is recognised by common law: see Fox, The Law of State Immunity, 2 nd edition, p.249. Mr Macdonald makes a number of submissions aimed at justifying the proposition that immigration control, because it rests on a complex of administrative, civil and criminal controls and sanctions, is still susceptible to a residue of state immunity outside the SIA. I do not accept this submission. Immigration control is not excluded as such by section 16, although the exclusion of criminal proceedings would of course apply to a criminal prosecution for an immigration offence. It is plain from section 20(3) that, in other respects, immigration control comes within the SIA. I respectfully agree with Nicol J that there is no room for some residual common law category of a person who is not a head of state as defined by the SIA but who would otherwise be recognised as...
To continue reading
Request your trial
-
Fawaz Al Attiya v Hamad Bin-Jassim Bin-Jaber Al Thani (Defendant/Applicant)
...(page 264) 36. These authorities were cited by the Court of Appeal in The Queen on the Application of HRH Sultan of Pahang v SSHD [2011] EWCA Civ 616 when it regarded the Certificate that the Sultan was not the Head of State of Malaysia as conclusive for the purposes of deciding whether the......
-
HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud and Another v Apex Global Management Ltd
...of America [2007] HRLR 8, Khurts Bat v Investigating Judge of the Federal Court of Germany [2012] 3WLR 180, R (HRH Sultan of Pahang) v Secretary of State of the Home Department [2011] EWCA Civ 616, and an extract from an essay by Elizabeth Wilmshurst (assistant legal adviser in the Forei......
-
CF v The Secretary of State for the Home Department
...The Arantzazu Mendi [1939] AC 256, per Lord Atkin at p. 264; R (H.R.H. Sultan of Parang) v Secretary of State for the Home Department [2011] EWCA Civ 616 at paragraphs 14 et seq, paragraph 30.) Professor Clive Parry, writing in the British Digest of International Law, Vol. 7 at pp. 214–6, i......
-
Khurts Bat v The Investigating Judge of the German Federal Court The Government of Mongolia (1st Interested Party) The Secretary of State for Foreign and Commonwealth Affairs (2nd Interested Party)
...(page 264) 36 These authorities were cited by the Court of Appeal in The Queen on the Application of HRH Sultan of Pahang v SSHD [2011] EWCA Civ 616 when it regarded the Certificate that the Sultan was not the Head of State of Malaysia as conclusive for the purposes of deciding whether the ......