Sultan of Pahang, R (on the application of) v Secretary of State for the Home Department

State immunity from United Kingdom immigration control depends on executive recognition of the territory as a state and the person as its head of state. A territory cannot be a state for some purposes but not others. Under the State Immunity Act 1978, a certificate under section 21 is conclusive on status for Part I and is the proper means by which the courts ascertain status at common law. A clear certificate cannot be displaced by the court’s own assessment of constitutional autonomy. If executive evidence is absent or insufficient, the court may adjourn to obtain it. Immigration control is not generally excluded from the statutory scheme, and there is no residual common-law immunity for a person not recognised as a qualifying head of state.

The Sultan of Pahang challenged a letter written on behalf of the Secretary of State for the Home Department stating that he was subject to United Kingdom immigration control. He argued that section 20 of the State Immunity Act 1978, section 8(3) of the Immigration Act 1971, or the common law conferred immunity on him and his entourage.

The Administrative Court, Nicol J, refused permission to apply for judicial review on 8 July 2010: [2010] EWHC 2024 (Admin). Sales J had earlier refused permission on the papers. A Foreign and Commonwealth Office certificate stated that Pahang was a constituent territory of Malaysia, that Malaysia was a federal state, and that the Sultan was not Malaysia’s head of state. The central issues were whether the certificate was conclusive and whether any separate common-law immunity remained.

1. Disposition. The appeal was dismissed unanimously. Maurice Kay LJ granted permission to appeal because the case raised an important issue, notwithstanding his view that the appeal had no real prospect of success. Smith LJ agreed with the reasons of Maurice Kay and Moore-Bick LJJ.
2. Statutory immunity. Sections 20(1), 20(3) and 20(5) of the State Immunity Act 1978 connect the diplomatic privileges and immigration exemption with a sovereign or head of a state on which Part I immunities are conferred. Following Pocket Kings Ltd v Safenames [2010] Ch 438, “constituent territory” and “state” are mutually exclusive for the Act’s purposes. The certificate therefore prevented section 20 from assisting the Sultan.
3. Common law and executive recognition. The statutory scheme does not abolish common-law immunity in matters expressly excluded from Part I. Immigration control, however, is not excluded as such, and section 20(3) brings the relevant exemption within the statutory scheme. There is no separate common-law category for a person who is not a head of state under the Act. The principle in Government of the Republic of Spain v S.S. Arantzazu Mendi [1939] AC 256, reaffirmed in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, required the court to accept the Government’s position on recognition and status. A clear certificate was conclusive; only if executive evidence were absent or insufficient would adjournment be appropriate.
4. Judicial review. Recognition of states and heads of state concerns foreign policy and relations between states. The court should not encroach upon that executive power. The reviewability of other prerogative powers did not alter the position in this context. The certificate was sufficiently clear and unequivocal, so the Sultan’s claim to immunity under either statute or common law failed.

1. Court of Appeal (Civil Division) — permission to appeal granted on the important-issue basis, but the appeal dismissed: [2011] EWCA Civ 616.
2. Administrative Court — Nicol J refused permission to apply for judicial review on 8 July 2010: [2010] EWHC 2024 (Admin). Sales J had earlier refused permission on the papers.