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In an important judgment, the Supreme Court has held that diplomatic immunity cannot defeat a claim by a victim of modern slavery.

In particular, the Court held that a serving diplomat’s employment of a domestic worker at his UK diplomatic residence, in circumstances which (on the assumed facts) constitute modern slavery, is the exercise of a "commercial activity". This is an exception to immunity under the Vienna Convention on Diplomatic Relations ("the Diplomatic Convention") which prevents the diplomat from asserting immunity from civil suit.

The successful Appellant, Ms Wong, a national of the Philippines, worked in the household of Mr Khalid Basfar, a Saudi Arabian diplomat. She claimed that she was trafficked to the UK by Mr Basfar and was forced to work in appalling circumstances. In October 2018, she brought claims against Mr Basfar in the Employment Tribunal for unpaid wages and breaches of employment rights. Mr Basfar argued that he had diplomatic immunity conferred by the Diplomatic Convention.

On a leapfrog appeal from the EAT, a majority of the Supreme Court held that ordinary domestic employment arrangements that are incidental to the daily life of a diplomat in the receiving state are covered by immunity but servitude, forced labour, and human trafficking (recognised in international law and now often grouped together under description “modern slavery”) would come within the “commercial activity” exception to immunity.

There is a material and qualitative difference between these two activities: employment is a voluntary relationship, entered into freely and governed by the terms of a contract, whereas the essence of modern slavery is that work is extracted by coercing and controlling a victim. This usually involves exploiting circumstances of the victim which make them especially vulnerable to abuse. In the case of migrant domestic workers, such circumstances often include physical and social isolation and invisibility to the outside world; the dependency of the victim may be increased by psychological abuse and withholding pay.

The extent of control over Ms Wong’s person and dominion over her labour exercised by Mr Basfar on the assumed facts of this case was so extensive and despotic as to place her in a position of domestic servitude. Further, on the assumed facts, Mr Basfar gained a substantial financial benefit by deliberately and systematically exploiting Ms Wong’s labour for almost two years, initially for a fraction of her contractual entitlement to wages and latterly for no pay at all. This conduct is accurately described as a commercial activity practised for personal profit.

The case will now return to the Employment Tribunal in order to determine the truth of Ms Wong's allegations.

Tim Otty QC and Paul Luckhurst acted for the Appellant, Ms Wong, alongside Professor Philippa Webb (20 Essex Street) and Ishaani Shrivastava (Devereux Chambers), instructed by Nusrat Uddin of Wilsons Solicitors LLP.

Tom Hickman QC and Flora Robertson acted for the First Intervener, Kalayaan.

A copy of the judgment is available here.

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