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Basfar (Respondent) v Wong (Appellant)

Basfar (Respondent) v Wong (Appellant)

Case [2022] UKSC 20 6 July 2022

Diplomatic & Consular Law

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Trinity Term
[2022] UKSC 20
On appeal from: UKEAT/0223/19/BA

JUDGMENT

Basfar (Respondent) v Wong (Appellant)

before

Lord Briggs
Lord Hamblen
Lord Leggatt
Lord Stephens
Lady Rose

JUDGMENT GIVEN ON
6 July 2022

Heard on 13 and 14 October 2021

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))

1st Intervener (Kalayaan)
(written submissions only)
Tom Hickman QC
Flora Robertson
(Instructed by Deighton Pierce Glynn (London))

2nd Intervener (United Nations Special Rapporteur on Trafficking in Persons especially Women and Children)
(written submissions only)
Professor Parosha Chandran
(Instructed by Duncan Lewis (London))

LORD BRIGGS AND LORD LEGGATT: (with whom Lord Stephens agrees)

A.INTRODUCTION

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Basfar (Respondent) v Wong (Appellant)

Details

AGLC: Basfar (Respondent) v Wong (Appellant) [2022] UKSC 20
Case: [2022] UKSC 20
Decision Date

CaseChat Overview and Summary

Ms Josephine Wong, a migrant domestic worker from the Philippines, worked for 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. The Supreme Court has previously considered the issue of whether exploiting a domestic worker in the manner alleged constitutes “exercising” a “commercial activity” within the exception to diplomatic immunity provided for in article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961. In Al-Malki v Reyes [2017] UKSC 61; [2019] AC 735, the Court of Appeal held that the diplomat had immunity. However, the Supreme 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. The Supreme Court held that, on the facts alleged, Ms Wong’s claim comes within the commercial activity exception to diplomatic immunity. The Employment Appeal Tribunal 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. This Court subsequently granted permission for such a leapfrog appeal.

The Supreme Court has held that employing a domestic worker does not itself constitute the exercise of a “commercial activity” by a diplomatic agent within the meaning of the exception. The Court also held that the alleged exploitation of Ms Wong by Mr Basfar was undertaken for his personal profit, and that compelling a migrant domestic worker to provide her labour in circumstances of modern slavery cannot reasonably be likened to paying for dry cleaning or ordinary domestic help. The Court concluded that Mr Basfar’s conduct amounted to a commercial activity practised for personal profit. The Court held that the concept of “commercial activity” chosen by the drafters of the 1961 Convention is vague, but that the factors considered relevant are not in any other context regarded as indicia of whether an activity is “commercial” or not. The Court considered the risks to the UK’s diplomats abroad from the expansion of the exception, and concluded that there are larger issues of international comity at stake here. The Court would therefore dismiss the appeal.

The final orders of the court are not stated in the text provided.

Orders