Supreme Court Judgement handed down today: Diplomatic immunity no longer protects diplomats from civil claims of modern slavery

Date posted: 6 July 2022

Diplomats are normally protected from both criminal charges and civil cases in the countries where they are posted, but today the UK Supreme Court ruled that immunity does not apply in civil cases involving alleged modern slavery. In this case the diplomat, Mr Basfar, asserted that Ms Wong's claim in the Employment Tribunal should be struck out on the basis of his diplomatic protection. The tribunal held that the diplomat was not immune from the civil jurisdiction in relation to claims in relation to work in his home in assumed conditions of modern slavery. This judgment was appealed through the courts to the Supreme Court last year and today the Justices' final judgement has been handed down with 3 out of 5 of the justices agreeing the majority decision.

The Justices held that the exception to diplomatic immunity[1] for a commercial activity outside official diplomatic functions applied to the employment of a domestic servant in conditions of modern slavery. Accepting that normal employment of a domestic worker would not be an exercise of a commercial activity, the majority did not “accept that exploiting a domestic worker by compelling her to work in circumstances of modern slavery is comparable to an ordinary employment relationship”. The view of the majority was that on the pleaded facts “Mr Basfar's treatment of Ms Wong amounted to a form of modern slavery, whether it was forced labour, servitude or trafficking. This shows that the relationship between them was not that of employment freely entered into, so as to be an ordinary part of Mr Basfar's daily life in the UK as a resident diplomat. And it shows that his conduct amounted to a commercial activity practised (in so far as it matters) for personal profit.”

The Judgment is ground-breaking because it holds that a current diplomat is not immune in relation to claims of modern slavery and domestic servitude. In October 2017, the UK Supreme Court in Reyes v Al-Malki had held that a former diplomat was not immune in those circumstances. However now legal action can be taken whilst diplomats are still in office within the UK's jurisdiction. This is a world leading judgment as the UK is now the first country in the world to take this stance against such actions by diplomats.

In 2015, the Ewins report commissioned by the government, found that there were serious issues in the UK concerning exploitative domestic servitude in diplomatic households. The issue is also prevalent across the world, where their diplomatic immunity remains intact against these such claims. The UK Supreme Court considered the US case law in their judgement today and thus it is hoped this case may impact other legal jurisdictions internationally such as the United States, where similar concerns for workers continue to be widely reported.

Nusrat Uddin of Wilsons Solicitors LLP said:

“The judgement today is thanks to the strength and bravery shown by Ms Wong. Not only did she escape, but she took her case to the highest court in the land and stood up for the rights of all domestic workers. We are extremely pleased with the judgement which has far reaching implications for victims of modern slavery and domestic servitude who are ill-treated by diplomats. Diplomats are no longer protected from exploiting their workers in the gruelling conditions under which some expect them to work. We hope that this case acts as a deterrent against such abuse going forward and exposes the hidden realities in some diplomatic households.

As the world becomes increasingly aware of the sheer scale and horrors of modern slavery this judgement offers some light in what can often feel like dark times. The UK can no longer be seen as a safe haven for diplomats who choose to exploit.We hope other countries will be taking note of the UK's stance and change the course of this thriving global crime, especially where it is carried out by state officials who abuse their privileges”.

If you have any queries about the case please contact Nusrat Uddin, a Partner in the Public Law department on 02088857952 or [email protected].

[1] The exception set out in Article 31(1) (c) of the Vienna Convention on Diplomatic Relations 1961, incorporated into English law by the Diplomatic Privileges Act 1964.

The case has been widely covered in the news:

BBC: https://lnkd.in/eDJuefr4
Guardian: https://lnkd.in/e8m9Nj9H
Independent: https://lnkd.in/eKuvCX9j
City AM: https://lnkd.in/e7n-JYWv
My London: https://lnkd.in/ehpgxPBE
Law360: https://lnkd.in/eqpau48x