Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62

Two Moroccan domestic workers employed at the Libyan and Sudanese embassies in London brought employment claims but were barred by state immunity under the State Immunity Act 1978. The Supreme Court held the relevant provisions incompatible with Article 6 ECHR and disapplied them for EU law claims.

Facts

Ms Janah, a Moroccan national, was recruited in Libya in 2005 to work as a domestic worker at the Libyan embassy in London, performing duties such as cooking, cleaning, laundry, shopping and serving at meals. She was dismissed in 2012 and brought Employment Tribunal proceedings against Libya for failure to pay the National Minimum Wage, breaches of the Working Time Regulations, failure to provide payslips or a contract, unfair dismissal, discrimination and harassment.

Ms Benkharbouche, also a Moroccan national, worked as housekeeper and cook to the Sudanese ambassador in London from 2005 until her dismissal in 2010. She brought similar claims (excluding discrimination/harassment).

Both claims were dismissed in the Employment Tribunal on the ground that Libya and Sudan were entitled to state immunity under sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978. The EAT and Court of Appeal disapplied the provisions for EU-derived claims and the Court of Appeal made a declaration of incompatibility under the Human Rights Act 1998.

Issues

The central issue was whether sections 4(2)(b) (excluding from the employment exception persons who were neither UK nationals nor habitually resident in the UK at the time of contract) and 16(1)(a) (immunity for proceedings concerning the employment of members of a diplomatic mission) of the State Immunity Act 1978 are compatible with:

• Article 6 ECHR (right of access to a court);
• Article 14 ECHR read with Article 6 (non-discrimination); and
• Article 47 of the EU Charter of Fundamental Rights.

Resolution of this turned on whether the provisions had a basis in customary international law, since only an international law obligation to grant immunity could justify denying access to a court.

Arguments

Secretary of State

The Secretary of State, Ms Steyn QC, argued: (i) a successful claim to state immunity does not engage Article 6 at all because the court has no jurisdiction; (ii) Article 6 is satisfied where the forum state acts on a ‘tenable’ view of international law within ‘currently accepted international standards’; (iii) state immunity is presumptively absolute, with the restrictive doctrine operating only by way of recognised exceptions, so that immunity remains where there is no consensus on an exception; and (iv) section 4(2)(b) could in any event be justified as domestic policy.

Respondent (Ms Janah)

Ms Janah contended that customary international law confines immunity to acts jure imperii; her employment as a domestic worker was plainly an act jure gestionis; sections 4(2)(b) and 16(1)(a) extended immunity beyond what international law required; and the denial of court access therefore violated Article 6 ECHR, Article 14 read with Article 6, and Article 47 of the EU Charter.

Judgment

Lord Sumption (with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agreed) dismissed the Secretary of State’s appeal.

Article 6 ECHR and state immunity

The Court reviewed the Strasbourg jurisprudence (Al-Adsani, Fogarty, McElhinney, Cudak, Sabeh El Leil) and held that Article 6 is engaged by a grant of state immunity, treated by the ECtHR as a procedural bar. A restriction on access is justified only if required by a rule of customary international law. The Court rejected the ‘tenable view’ approach: anything going further than international law requires is necessarily disproportionate.

Identification of customary international law

A rule of customary international law requires widespread, representative and consistent state practice accepted as legal obligation. The UN Convention on Jurisdictional Immunities (2004), not in force and with limited ratifications, is evidence only insofar as it codifies existing custom; it is not assumed to be wholly declaratory.

Restrictive doctrine as default

Reviewing the historical development of state immunity from The Schooner Exchange through The Parlement Belge, The Cristina, The Philippine Admiral and I Congreso del Partido, Lord Sumption concluded that there had never been a sufficient international consensus in favour of absolute immunity. The only sustained international consensus is in favour of the restrictive doctrine: immunity attaches only to acts done in the exercise of sovereign authority (jure imperii), not to acts of a private law character (jure gestionis). The restrictive doctrine is the default; immunity does not extend beyond it absent a specific rule of customary international law.

Section 4(2)(b)

There is no customary international law rule requiring immunity for employment claims by nationals or habitual residents of third countries working in the forum state. State practice is too diverse. Section 4(2)(b) therefore goes beyond what international law requires and cannot be justified as domestic policy either: the forum state has duties to protect those lawfully employed in its territory regardless of their nationality at the time of contract.

Section 16(1)(a)

Section 16(1)(a) confers immunity on all employment claims relating to mission staff regardless of the juridical character of their work. This cannot be justified under the restrictive doctrine. Article 7 of the Vienna Convention on Diplomatic Relations (free appointment of staff) does not require immunity from damages claims, since such claims do not compel a state to employ anyone. Article 11(2)(b)(iv) of the UN Convention, if it bears its literal meaning, is legislative rather than declaratory. Decisions such as Sengupta v Republic of India were criticised as taking too wide a view of what counts as inherently governmental. There is no international consensus supporting blanket immunity for all embassy staff.

Application

The employment of the two claimants as domestic staff was plainly not an exercise of sovereign authority. Sections 4(2)(b) and 16(1)(a), so far as they conferred immunity in such cases, were incompatible with Article 6 ECHR. The discrimination argument under Article 14 added nothing. Article 47 of the EU Charter required disapplication of the offending provisions for EU-derived claims (discrimination, harassment, Working Time Regulations breaches), which must be remitted to the Employment Tribunal.

Implications

The decision affirms that, under customary international law, state immunity is confined to acts done in the exercise of sovereign authority. The restrictive doctrine is the starting point, not an exception to absolute immunity. Provisions of domestic law that go further than international law requires cannot be justified as a proportionate restriction on the Article 6 right of access to a court.

The judgment has significant practical implications for embassy domestic and administrative staff: they may now bring employment claims grounded in EU-derived law (such as discrimination, harassment and Working Time Regulations claims) before UK tribunals despite sections 4(2)(b) and 16(1)(a). For claims grounded purely in domestic law, the provisions remain on the statute book but are subject to a declaration of incompatibility, leaving it to Parliament to amend the legislation.

The case clarifies the proper approach English courts must take when interpreting international law: where a justiciable issue requires identification of a rule of customary international law, the court must decide it rather than defer to a ‘tenable view’. The decision also confirms that not every provision of an unratified treaty (such as the 2004 UN Convention) reflects customary law; careful distinction between codification and progressive development is required.

Limits of the decision should be noted: the Court left open whether state immunity might still extend to particular aspects of an employment relationship engaging sovereign interests (such as dismissal on national security grounds or specific reinstatement orders), and did not need to resolve the broader jurisdictional question raised in Holland v Lampen-Wolfe and Jones v Saudi Arabia about whether a valid immunity engages Article 6 at all.

Verdict: The Supreme Court dismissed the Secretary of State’s appeal and affirmed the Court of Appeal’s order. Sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 are incompatible with Article 6 ECHR (and, in the case of section 4(2)(b), with Article 14 read with Article 6) insofar as they barred the claimants’ claims. They must be disapplied in respect of the EU-derived claims (discrimination, harassment and breaches of the Working Time Regulations), which are remitted to the Employment Tribunal. The remaining domestic-law claims are barred by the Act but to that extent the provisions are declared incompatible with the Convention.

Source: Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62