The Limits of Diplomatic Immunity in the Age of Human Trafficking: The Supreme Court in Reyes v Al-Malki

Disclaimer: The author was counsel to the Intervener, Kalayaan, a charity that supports migrant domestic workers, some of whom have been trafficked. This post is written in the author’s personal academic capacity and does not necessarily represent the views of her client.

Last week the UK Supreme Court delivered judgments in two landmark cases on immunity. This post examines the Judgment in Reyes v Al-Malki on diplomatic immunity.

There is much of interest in the Reyes Judgment – the relationship between State and diplomatic immunities, approaches to treaty interpretation (including temporal dimensions), the appeal by Lord Wilson to the International Law Commission to take this issue forward (para 68), and the Court allowing a diplomat to be served by post to their private residence (para 16). I will focus on the approach to diplomatic immunity in the context of human trafficking.

The Court decided that Mr and Mrs Al-Malki, a former member of the diplomatic staff of the Saudi embassy in London and his wife, are not entitled to immunity from the claim brought against them by Ms Reyes, a Philippine national who was their domestic servant for two months in 2011. The appeal proceeded on the basis of assumed facts. Ms Reyes alleges that she had entered the UK with a contract showing that she would be paid £500 per month by Mr Al-Malki. Instead, she says she was paid nothing. She alleges she was made to work excessive hours, had her passport confiscated, did not have proper accommodation, and was prevented from leaving the house or communicating with others (para 1). She eventually escaped.

UK Visas and Immigration had found that there were reasonable grounds for concluding that Ms Reyes was a victim of human trafficking.

The Supreme Court decided on the basis of Article 39(2) of the Vienna Convention on Diplomatic Relations, which sets out the residual immunity enjoyed by diplomats who are no longer in post:

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 member of the mission, immunity shall continue to subsist. (emphasis added)

The Judges unanimously held that the employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki ‘in the exercise of his functions as a member of the mission’ and he was therefore not immune.

Another provision of the Vienna Convention – Article 31(1)(c) – had formed the centrepiece of the parties’ arguments in the Court of Appeal and the Supreme Court. It sets out an exception to immunity for diplomats who are currently in post:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of : 

…

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (emphasis added)

Lord Sumption wrote the lead Opinion (with which Lord Neuberger agreed), disposing of the case on the basis of Article 39(2), but also analysing Article 31(1)(c) in depth. Lord Wilson agreed with Lord Sumption’s analysis of Article 39(2), but expressed ‘doubts’ regarding his interpretation of Article 31(1)(c), with Lady Hale and Lord Clarke sharing these ‘doubts’.

We thus have a straightforward, unanimous decision on the basis of Article 39(2) applicable to former diplomats, but we also have a split within the Court on the interpretation of Article 31(1)(c), with obiter ‘doubts’ on obiter reasoning. The Court of Appeal had decided on the basis of Article 31(1)(c) and its reasoning was largely followed by Lord Sumption.

A key difference between the Supreme Court Judges is the understanding of the phenomenon of human trafficking and its link to commercial activity. The Appellant and the Second Intervener had put forward a ‘supply chain’ theory of human trafficking – the international law definition of human trafficking deliberately treats all those persons who are knowingly involved in the process from beginning to end as effectively jointly engaged in a common, illicit, commercial activity. A diplomat who employs and exploits a trafficked person in the knowledge that he or she has been trafficked is thus as much a part of the illicit commercial activity of trafficking as the recruiter, transporter and other professional traffickers.

Lord Sumption (and Lord Neuberger) rejected this theory (para 45).

… One can readily imagine circumstances in which someone who employed a trafficked person as a domestic servant had obtained her through a chain of intermediaries engaged in human trafficking as a business, although that does not appear to have happened in Ms Reyes’ case. In such a case, the employer may incur criminal or civil liability along with the other participants who brought the victim to his door. But his liability would be for the trafficking. It would not without more make him a joint participant in the intermediaries’ business. Doubtless, without customers professional traffickers would have no business, but that does not make the customers into practitioners of a commercial activity. By way of analogy, if I knowingly buy stolen property from a professional fence for my personal use, both of us will incur criminal liability for receiving stolen goods and civil liability to the true owner for conversion. The fence will also be engaging in a commercial activity. But it does not follow that the same is true of me. (emphasis added)

For these two Judges, a victim being treated as a ‘commodity’ did not bring him/her within the legal concept of ‘commercial activity’ for the purpose of Article 31(1)(c).

Lord Wilson (and Lady Hale and Lord Clarke), on the other hand, said there is ‘another rational view’, namely:

that the relevant “activity” is not just the so-called employment but the trafficking; that the employer of the migrant is an integral part of the chain, who knowingly effects the “receipt” of the migrant and supplies the specified purpose, namely that of exploiting her, which drives the entire exercise from her recruitment onwards; that the employer’s exploitation of the migrant has no parallel in the purchaser’s treatment of the stolen goods; and that, in addition to the physical and emotional cruelty inherent in it, the employer’s conduct contains a substantial commercial element of obtaining domestic assistance without paying for it properly or at all. (para 62)

The three Judges had in mind the ‘universal determination to combat human trafficking’ (para 60), of which the UK is the leading State: with its pioneering Modern Slavery Act and leadership that last month brought together 37 states in ‘A Call to Action to end forced labour, modern slavery and human trafficking.’

Lord Wilson recognised that current State practice on the Article 31(1)(c) exception supports Lord Sumption’s position, but he observed that ‘it is difficult for this court to forsake what it perceives to be a legally respectable solution and instead to favour a conclusion that its system cannot provide redress for an apparently serious case of domestic servitude here in our capital city. In the event my colleagues and I are not put to that test today’ (para 68).

Where does this leave us for future cases?

Lords Sumption and Neuberger have indicated that where there is ‘something more’ than the employment of a trafficked person by a diplomat, such as their exploitation as a prostitute, this would fall within the commercial activity exception (para 45). Lord Wilson, Lady Hale and Lord Clarke have said that nothing more may be needed – being the purchaser at the end of a human trafficking chain may bring a diplomat within the exception.

Last year I did a survey of employment cases brought against diplomats. Of the 12 cases in the US and UK involving an employee suing a diplomat, immunity was set aside in 4 cases. All 4 cases concerned former diplomats and Article 39(2). The Judgment in Reyes is thus consistent with the jurisprudence in interpreting Article 39(2) more narrowly than Article 31(1)(c), finding that it does not cover acts incidental to the exercise of the diplomat’s official functions, which are at best of indirect benefit to the diplomat.

From a policy perspective, this is understandable because the risk of interference in foreign relations by exercising jurisdiction is smaller with respect to a former, rather than incumbent, official. At the same time, the chance of the victim receiving compensation is also smaller as the diplomat has usually returned to their home jurisdiction, leaving no assets behind.

From the perspective of victims of modern slavery in diplomatic settings, it is a relief that the Court has not given a binding answer to the question whether the Article 31(1)(c) ‘professional or commercial activity’ exception applies to a diplomat in post. Lord Sumption and Lord Neuberger took a strict approach to interpreting ‘professional or commercial activity’, suggesting that Mr Al-Malki would have to be carrying on an ‘alternative occupation’ (para 51) to fall within the exception. Three other Judges expressed ‘doubts’ that prevent this strict interpretation having a ‘chilling effect’ on future employment claims against diplomats.

Someday we will have another case, with different facts, that may allow a claim to pass through the door that has been left open by the Court.