Reyes v Al-Malki & Anor [2017] UKSC 61

Ms Reyes, a Filipina domestic worker, sued her Saudi diplomat employer for trafficking and exploitation. The Supreme Court allowed her appeal, holding that since the diplomat's posting had ended, residual immunity under article 39(2) did not cover non-official acts like employing domestic staff.

Facts

Ms Reyes, a Philippine national, was employed as a domestic servant by Mr and Mrs Al-Malki at their London residence between 19 January and 14 March 2011. Mr Al-Malki was then a member of the diplomatic staff at the Saudi Arabian embassy. Ms Reyes alleged that she was trafficked into the UK, made to work excessive hours, denied proper accommodation, had her passport confiscated, was prevented from leaving the house or communicating with others, and was paid nothing until after her escape on 14 March 2011. The proceedings proceeded on the assumption that these allegations were true and amounted to trafficking within the Palermo Protocol 2000.

Ms Reyes brought proceedings in the Employment Tribunal alleging race discrimination, unlawful deductions from wages, and failure to pay the national minimum wage. The Court of Appeal held the Tribunal had no jurisdiction due to diplomatic immunity under articles 31 and 37(1) of the Vienna Convention on Diplomatic Relations 1961 (incorporated by the Diplomatic Privileges Act 1964). Crucially, on 29 August 2014, Mr Al-Malki’s posting ended and he left the UK.

Issues

The principal issues were:

• Whether service of the claim form by post violated articles 29 and 30 of the Vienna Convention.
• Whether the employment of a domestic servant fell within the exception in article 31(1)(c) for “any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”.
• Whether human trafficking altered the characterisation of such employment as a “commercial activity”.
• Whether, given that Mr Al-Malki’s posting had ended, the narrower residual immunity under article 39(2) applied.

Arguments

Appellant (Ms Reyes)

Mr Otty QC argued that the trafficking element rendered the employment a commercial activity within article 31(1)(c), as trafficking is inherently commercial under the Palermo Protocol, and the financial benefit derived from underpayment supplied the profit element. He drew an analogy with the restrictive doctrine of state immunity, contending that purely private acts should not be immune.

Respondents (Al-Malkis)

The respondents contended that the employment of domestic staff fell within Mr Al-Malki’s official functions, or alternatively was not a “commercial activity” within the exception. They argued service was invalid as violating articles 29 and 30.

Judgment

Service of process

Lord Sumption (with whom Lord Neuberger agreed) held that postal service on a diplomat’s private residence does not violate articles 29 or 30. The mere conveyance of information by post is not a trespass, does not affront dignity, and does not impede use of the premises. Service is distinct from jurisdictional immunity.

Article 31(1)(c)

Lord Sumption held that the employment of a domestic servant for purely personal services is not a “professional or commercial activity exercised by the diplomatic agent”. The exception requires the diplomat to be “practising the profession or carrying on the business” – to “set up shop”. This is confirmed by article 42, which prohibits diplomats from practising any professional or commercial activity for personal profit, and by the travaux préparatoires which showed that articles 31(1)(c) and 42 were intended to cover the same activities – those involving a dual status where incompatible occupations are pursued. The US authority of Tabion v Mufti (1996) was endorsed.

Trafficking

Lord Sumption rejected the argument that trafficking transforms the employment into a commercial activity. The Palermo Protocol does not require trafficking to be classified as commercial; the employer’s exploitation of a domestic servant on exploitative terms remains non-commercial in nature. By analogy, a person who buys stolen goods from a professional fence does not thereby engage in commercial activity, though the fence does. Diplomatic immunity, being procedural, does not conflict with jus cogens norms, as confirmed in Jones v Saudi Arabia and Germany v Italy.

Article 39(2) – residual immunity

Decisively, since Mr Al-Malki’s posting had ended and he had left the UK, he was entitled only to residual immunity under article 39(2), which covers only “acts performed by such a person in the exercise of his functions as a member of the mission”. The employment and maltreatment of Ms Reyes were not acts done on behalf of Saudi Arabia and were not official functions. The fact that immunity existed when proceedings were commenced did not matter, as diplomatic immunity is procedural and falls to be determined at the time of hearing (Empson v Smith [1966] 1 QB 426 applied).

Lord Wilson’s concurrence

Lord Wilson (with whom Lady Hale and Lord Clarke agreed) agreed the appeal should be allowed on the article 39(2) ground but expressed significant doubts about Lord Sumption’s narrow construction of article 31(1)(c). He highlighted the significant problem of exploitation of migrant domestic workers by diplomats, the international consensus against trafficking, and the anomaly that state immunity would not cover such employment whereas diplomatic immunity might. He suggested the International Law Commission should consider amending article 31.

Implications

The decision establishes that a former diplomat who has left the receiving state cannot claim immunity in respect of the employment and maltreatment of a private domestic servant, since such acts are not performed in the exercise of diplomatic functions for the purposes of article 39(2). This provides a practical route to redress for trafficked domestic workers once the diplomat’s posting ends.

However, the majority view (Lord Sumption and Lord Neuberger) that article 31(1)(c) does not apply to such employment during a diplomat’s posting remains influential but is not binding ratio, since Lord Wilson, Lady Hale and Lord Clarke expressed reservations and did not need to decide the point. The construction of article 31(1)(c) therefore remains open for reconsideration in a future case where the diplomat is still in post.

The judgment underscores the procedural nature of diplomatic immunity, its distinction from state immunity, and the principle that international law immunities do not conflict with jus cogens norms because they merely divert claims to alternative forums. The case is significant for victims of trafficking, migrant workers’ charities, and the wider question of how diplomatic immunity interacts with modern international human rights obligations. The court signalled that legislative or international amendment may be needed to address the gap exposed by the case.

Verdict: Appeal allowed. The Supreme Court declared that Mr and Mrs Al-Malki are not entitled to diplomatic immunity in respect of Ms Reyes’s claims, because Mr Al-Malki’s posting had ended and the residual immunity under article 39(2) of the Vienna Convention does not cover the employment and treatment of a domestic servant, which were not acts performed in the exercise of his functions as a member of the mission. The case was to be remitted to the Employment Tribunal to be determined on its merits, subject to any submissions identifying a subsisting factual issue.

Source: Reyes v Al-Malki & Anor [2017] UKSC 61