Al-Juffali v Estrada

A receiving-state court should not conduct a functional inquiry into whether an accredited Permanent Representative or diplomat has actually performed official duties before determining immunity in principle. Appointment, notification, waiver and termination are governed by the applicable international instruments and executive mechanisms. A certificate under the International Organisations Act 1968 is conclusive of the certified facts. Immunity reflecting generally recognised international law is not a disproportionate restriction under Article 6 of the ECHR. A person permanently resident in the UK receives only official-act immunity under the International Maritime Organisation (Immunities and Privileges) Order 2002. Permanent residence requires the but-for condition and a degree of permanence, assessed qualitatively.

The appellant appealed against Hayden J’s order of 8 February 2016 dismissing his application to strike out the respondent’s claim for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984. He claimed immunity as St Lucia’s Permanent Representative to the IMO. The High Court held that he was not entitled to immunity in principle because he had not performed the functions of the office and that, in any event, he was permanently resident in the UK and therefore had only official-act immunity. The appeal challenged both conclusions. The central issues were whether a functional review was permissible and whether the appellant was permanently resident in the UK.

1. Disposition. The appeal was dismissed. The judge had erred in holding that the appellant was not entitled to immunity in principle, but was entitled to conclude on the facts that the appellant was permanently resident in the UK and that the claim did not concern official acts.
2. The applicable framework was Article 13 bis of the Headquarters Agreement and Article 15 of the International Maritime Organisation (Immunities and Privileges) Order 2002. The court rejected a functional review of whether an appointed Permanent Representative had actually performed duties. The instruments provided formal mechanisms for notification, waiver, termination and designation as persona non grata. They did not permit the receiving-state courts to look behind the representative’s status.
3. This conclusion was supported by the reasoning adopted in Al Atiyya v Al Thani [2016] EWHC 212 (QB) and by Engelke v Musmann [1928] AC 433. The ratio in R v Governor of Pentonville Prison ex p Teja [1971] 2 QB 274 was distinguishable because the appellant had been accepted and received by the FCO. The additional observations in Teja were obiter. Bagga [1991] QB 485 was inconsistent with a judicial inquiry into the nature of the diplomat’s activities. Apex Global Management Ltd v Fi Call & Others [2013] EWHC 587 (Ch) concerned State immunity and did not alter the position on diplomatic immunity.
4. A functional review was not required by Article 6 of the ECHR. The grant of immunity reflected generally recognised rules of public international law and was therefore not disproportionate. The court applied the approach endorsed in Al-Malki v Reyes [2015] EWCA Civ 32 and supported by the ECtHR’s reasoning in Stichtung Mothers of Srebrenica v Netherlands (2013) 57 EHRR SE10.
5. Permanent residence was governed by the but-for test reflected in the FCO Circular. Residence absent the appointment was necessary but not sufficient. The court also had to assess permanence, intention and the wider circumstances. There was no requirement for an indefinite right to remain or an intention to live in the UK until death. The appellant’s sustained family base in the UK over three marriages provided ample evidence supporting the finding of permanent residence. The appellate challenge to that evaluative conclusion did not satisfy the high threshold stated in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642.

• Court of Appeal (Civil Division) dismissed the appeal on 22 March 2016.
• High Court Family Division Hayden J dismissed the appellant’s application to strike out the Part III claim on 8 February 2016.