Basfar v Wong [2022] UKSC 20 (06 July 2022)
Citation:Basfar v Wong [2022] UKSC 20 (06 July 2022)
Subjects invoked: 41 'Employment'. 1. 'Nation'.
Rule of thumb:Do countries’ embassies in the UK have absolute legal immunity from UK law? If you are working in the UK as an employee in the house of a foreign embassy diplomat, do UK employment laws apply? Possibly. The general rule is that anything done by a foreign diplomat UK in the UK is usually a complete legal vacuum. The rule of law of the UK does not apply to them. Minimum wage, healthy & safety, working time holiday pay etc do not apply inside it. However, the exception of (1) once their term as diplomat is over, and (2) (a) if their breach is not at all work-related or (b) is exceptionally flagrant so that it breaches the Vienna Convention, then the diplomat can still be made liable.
Background facts:
This case invoked the subjects of international law and employment. It invoked the international law principle of ‘diplomatic immunity’ and the issue of when exceptions to this apply.
The material facts were that Wong was trafficked into the UK by the Saudi Arabian embassy, and was working as an employee in the UK home of the Saudi diplomat, Mr Basfar. According to Wong, she was then subject to extremely strict work condition breaching UK employment laws towards its staff – Wong was not allowed to leave the property, she had to work from 07:30-23:30, and was not paid for 7 months at one point. Fortunately, Wong managed to escape from the house. Wong then raised a claim against Wong in the Employment Tribunal to try to get him to pay her the wages owed for the work she did in the house. Basfar did not deny these allegations as such. However, Basfar and the Saudi Arabian embassy refused pay the damages for breach of employment law to Wong based on the ‘diplomatic immunity’ principle. Basfar and the Saudi Arabian embassy argued that the diplomatic office in a foreign country is a legal vacuum, where the national law of the United Kingdom does not apply, and that as Basfar did a lot of work from home, his home was an extension of the Saudi embassy.
Basfar therefore argued that Wong would need to raise a case in Saudi Arabia and make arguments based on Saudi Arabian law against them due to the principle of absolute national immunity in countries’ embassies in the UK. Wong argued that an exception to the diplomatic immunity principle applied in this case. Wong argued that diplomats only had immunity under international law for the period when they were working and not after, and that diplomats could still be made liable for totally non-work related breaches of the law, or exceptionally serious and acute breaches of the law, such as subjecting someone to modern-day slavery/torture. Wong further explained that Basfar was not the Saudi Arabian diplomat any more so he was not covered by the diplomatic immunity principle any longer. Wong further argued that maintaining a house was not related to the actual business of the diplomat, and that these breaches of employment were exceptionally flagrant and constituted modern-day slavery in breach of the Vienna Convention, so the diplomat owed them damages for all the breaches of employment law suffered. Basfar counter-argued that house-maintenance was covered under diplomatic immunity, as he had meetings there discussing diplomatic business, and also did lots of work from there. Basfar further argued that the principle of a diplomatic office being a legal vacuum within a country, with this being a safe space for nationals of that country, was a principle that had to be strictly upheld by the Court.
Judgment:
The UK Court found in favour of Wong by split-decision. The Court emphasised that the principle of diplomatic immunity and the embassy being a legal vacuum within the UK is one which the UK Court affords enormous weight to. However, the Court affirmed that trafficking workers into the UK and subjecting them to slavery inside foreign diplomats’ UK home, was indeed to be an extremely serious breach of UK employment law triggering the Vienna Convention as an exception to the diplomatic immunity principle. The Court ordered a re-trial in the High Court where if all Wong was saying was found to be true on the evidence, then Basfar would be ordered to pay Wong damages for this for potential breach of UK employment law.
(This decision was made by the majority of Lord Briggs, Lord Leggatt and Lord Stephens, with Lord Hamblen and Lady Rose dissenting that an extension of a foreign embassy to a foreign diplomat’s home in the UK is an absolute safe-space where UK law categorically does not apply – even in future cases this Judgment could still be challenged and the law is not necessarily settled to a point where the overwhelming majority of people in the UK Judiciary are completely comfortable it is 100% correct in relation to this point of law)
Ratio-decidendi:
‘We conclude that, on the assumed facts, the claim brought by Ms Wong falls within the exception from immunity provided for in article 31(1)(c) of the Vienna Convention on Diplomatic Relations. It follows that, if those facts are proved, Mr Basfar does not have immunity from the civil jurisdiction of the courts of the United Kingdom. Unless admissions are made, a hearing is therefore required to determine the truth of the allegations…’, Lord Briggs at 107.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.