Sultan of Pahang v Home Secretary [England, Court of Appeal]
| Jurisdiction | England & Wales |
| Judge | Maurice Kay,Smith,Moore-Bick LJJ |
| Judgment Date | 25 May 2011 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2011 |
England, Court of Appeal
(Maurice Kay, Smith and Moore-Bick LJJ)
State immunity Head of State Constituent territory of federal State Ruler of constituent territory Whether entitled to immunities and privileges of Head of State Exemption from immigration control Certificate from Foreign and Commonwealth Office State Immunity Act 1978
Recognition States Governments Head of State Claim by ruler of constituent territory of federal State to privileges and immunities of Head of State Whether territory recognized as a State
Relationship of international law and municipal law Recognition of States and Head of State Role of Executive and courts Whether certificate from Executive conclusive The law of England
Summary: The facts:Pahang was one of the states comprising the Federation of Malaysia. The Sultan of Pahang was the ruler of the state of Pahang. The Constitution of Malaysia provided that the position of Head of State of the Federation (Yang di Pertuan Agong) rotated amongst the rulers of the nine states which were monarchies. In accordance with these provisions, the Sultan of Pahang had been Head of State of Malaysia between 1979 and 1984. The Sultan maintained that he was a Head of State within the meaning of the State Immunity Act 1978 (the SIA) and that, accordingly, he and his entourage were exempt from United Kingdom immigration controls. The Foreign and Commonwealth Office (FCO) certified that Pahang was a constituent territory of Malaysia.2 The Foreign Secretary declined the request of the Sultan for an Order in Council under Section 14(5) of the SIA3 extending the
immunities of a State to Pahang. The Home Secretary denied that the Sultan and his entourage could enter and leave the United Kingdom without being subject to immigration control. The Sultan sought to challenge the Home Secretary's decision but was refused permission to apply for judicial review by the Administrative Court. The Sultan appealed against that refusalHeld (unanimously):The appeal was dismissed. The Sultan was not a Head of State. In accordance with Section 21 of the SIA,4 the FCO certificate was conclusive that Pahang was a constituent territory of Malaysia. It could not, therefore, be a State for the purposes of the SIA. The certificate was also conclusive that someone other than the Sultan of Pahang was Head of State of Malaysia. There was no scope for the Sultan to enjoy the status of a Head of State at common law, nor could he be a Head of State for some purposes and not others. It was for the Government to decide whether or not to recognize an entity as a State and an individual as a Head of State and the Court was not entitled to question its decision in these respects (paras. 137).
The following is the text of the judgments delivered in the Court of Appeal:
Lord Justice Maurice Kay
1. 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.
2. 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 197984. 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.3. 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.
4. Section 8(3) of the Immigration Act 1971 now provides:
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.
5. 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:
6. 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.
7. Section 21 of the SIA provides:
8. 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:
9. Constituent territories of a federal State also receive attention in section 14(5) of the SIA which, having provided that section 12 (Service of process and judgments in default of appearance) applies to such constituent territories, then provides more generally:
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.
10. 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. SafenamesELR[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 paragraphs 1112):
I respectfully agree with this analysis.
11. 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...
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