Reyes v Al-Malki

The Supreme Court has unanimously found that a former diplomat would not be entitled to diplomatic immunity in relation a claim of human trafficking brought by a domestic worker because the worker’s employment and alleged treatment would not constitute acts performed in the course of the diplomat’s official functions (within the meaning of Articles 31(1)(c) and 39(2) of the 1961 Vienna Convention on Diplomatic Relations). 

The Court unanimously held that in such circumstances the diplomat would have lost any immunity from the moment his posting at the Saudi Embassy in London came to an end and it did not matter that the claim was originally issued at a time when he was a serving diplomatic agent in the UK.

A majority of the Court (3:2) also indicated that it saw substance in the argument that the employment of a domestic worker, where the conditions of her employment constituted human trafficking, amounted to a “commercial activity exercised by the diplomatic agent in the receiving State outside his official functions” (under Article 31(1)(c) of the 1961 Convention). It would follow from this argument that immunity should not stop a trafficked worker bringing a claim against her diplomat employer even while the diplomat remains in post. In circumstances where the Court had found in favour of the claimant, Ms Reyes, on the issue of loss of immunity, it did not determine this issue.

The Court also unanimously rejected the diplomat’s contention that he had not been validly served with proceedings. The Court ruled that a claim form could be served by ordinary post to a diplomat’s residence and that this would not breach Articles 22 and 30 of the 1961 Convention (which provide that a diplomat’s residence is inviolable).

The full judgment can be read here

Timothy Otty QC and Paul Luckhurst (instructed by the Anti-Trafficking and Labour Exploitation Unit) acted for Ms Reyes.

Tom Hickman and Flora Robertson (instructed by Deighton Pierce Glynn) acted for the first intervener, Kalayaan.

Ben Jaffey QC (instructed by the Government Legal Department) acted for the second intervener, the Secretary of State for Foreign and Commonwealth Affairs.