A Philippine national, Reyes, was employed as a domestic servant between 19 January and 14 March 2011 by Mr. and Ms. Al-Malki for their London residence. Ms. Reyes’s duties included cleaning, helping in the kitchen at mealtimes and looking after the children. During this period, Mr. Al-Malki was a member of the diplomatic staff of the embassy of Saudi Arabia in London. The facts, as Ms. Reyes alleges, and which are not disputed by the Al-Malkis, are that she entered the United Kingdom on a Tier 5 visa from the British embassy in Manila she obtained by producing documents supplied by Mr. Al-Malki, including a contract showing that she would be paid £500 per month. Ms. Reyes alleges that the Al- Malkis maltreated her by requiring her to work excessive hours, failing to give her proper accommodation, confiscating her passport and preventing her from leaving the house or communicating with others; and that they paid her nothing until after her employment terminated upon her escape on 14 March.
大不列颠及北爱尔兰联合王国
菲律宾Employment Tribunal
In June 2011, Ms Reyes began proceedings in the Employment Tribunal. Those allegations are yet to be determined at trial because the jurisdictional questions had to be determined first.
Court of Appeals
The Court of Appeal held that the Employment Tribunal lacked jurisdiction because Mr Al-Malki was entitled to diplomatic immunity under article 31 of the Vienna Convention on Diplomatic Relations 1961 (“the Convention”), which is incorporated into the law of the United Kingdom by section 2(1) of the Diplomatic Privileges Act 1964. Under article 37(1) of the Convention, Mrs Al-Malki therefore benefited from immunity as his family member.
Supreme Court
The Supreme Court unanimously allowed the appeal and dismissed the Al-Malki’s cross-appeal. In appealing the court of appeals decision, Ms. Reyes contended that the commercial exception to the general rule of diplomatic immunity contained in article 31(1)(c) of the Vienna Convention applied and the Employment Tribunal would have jurisdiction.
The court discussed the history of and philosophy behind diplomatic immunity, explaining that it is “immunity from jurisdiction [of the courts in the receiving state] and not from liability.”
The court thoroughly considered whether Ms. Reyes’s acts were performed in the exercise of an official function or not. Acts performed in exercising an official function are considered to be committed on behalf of a state, and so they are immune. These acts also receive residual immunity under article 39(2). Because of the history and theory of reciprocity in diplomatic relations, even a diplomat’s non-official acts are immune. However, once a diplomat’s post ends, their immunity will only apply to official acts.
The Al-Malkis left the UK once Mr. Al-Malki’s post ended, and so only his official acts would be entitled to residual immunity. Ms. Reyes’s employment and subsequent abuse was found to not be an exercise of an official function. Even though her services surely helped Mr. Al-Malki perform his job, her work wasn’t done on behalf of Saudi Arabia.
Mr. and Mrs. Al-Malki cross-appealed, contending that they were never validly because of the protection conferred to diplomats and the residences of diplomats (articles 29 and 30 of Vienna Convention). The court found that the service of process conveyed information and did not violate the person of a diplomatic agent or their residence’s premises.
The court found that Reyes was entitled to sue the Al-Malkis because his posting had ended, as had his diplomatic immunity. Ms. Reyes’s services were related to Mr. Al-Malki’s diplomatic functions, and so any diplomatic immunity expired with the expiration of his post.
Mr. Al-Malki was a diplomat for Saudi Arabia. He worked at the London embassy until August 29, 2014. While working as a diplomat, Mr. Al-Malki was entitled to personal immunity under article 31 of the Vienna Convention on Diplomatic Relations for both acts related to the exercise of official acts as a member of the mission and acts that are not official. This second category is a jurisdictional protection, and Mr. Al-Malki was no longer entitled to it once his posting expired, though his immunity for official acts would not expire.
Mrs. Al-Malki was living in the United Kingdom while her husband was employed at the Saudi embassy in London. The Al-Malki’s left the UK after Mr. Al-Malki’s posting ended August 29, 2014. As a family member of a diplomat, Ms. Al-Malki was entitled to personal immunity under article 37(1) in conjunction with Art. 31 (1) of the Vienna Convention on Diplomatic Relations.
Vienna Convention on Diplomatic Relations
Ms. Reyes, was employed as a domestic servant by Mr. and Ms. Al-Malki for their London residence, and was severely mistreated there. The Al- Malkis forced her to work excessive hours, did not give her proper accommodation, confiscated her passport and prevented her from leaving the house or communicating with others; and paid her nothing until after her employment terminated upon her escape on 14 March. During this period, Mr. Al-Malki was a diplomat at the embassy of Saudi Arabia in London.
Article 31 of the Convention contains an exception to diplomatic immunity from civil jurisdiction where the proceedings relate to “any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.” The Al-Malkis left the UK once Mr. Al-Malki’s post ended, and so only his official acts would be entitled to residual immunity. Ms. Reyes’s employment and abuse was found to not be an exercise of an official function, and so any diplomatic immunity expired at the end of his posting. Even though her services helped Mr. Al-Malki, her work wasn’t done on behalf of Saudi Arabia.
See above.
Reyes v. Al-Malki and another [2017] UKSC 61
The discussion of whether a potential victim of human trafficking was providing “commercial activity,” which is exempt under article 31(1)(c) of the Vienna Convention on Diplomatic Relations, was analysed through the lens of the UN Convention against Transnational Organized Crime and the Protocol to Prevent, Supress and Punish Trafficking in Persons. Under the Protocol, trafficking is treated as an inherently commercial activity (employer participates by employing the victim, and the profit element is satisfied by the financial benefit the employer obtains by paying less than the going rate or legal minimum or nothing at all).