Estrada v Al-Juffali (Rev 1)

Diplomatic immunity protects the effective performance of diplomatic functions. It does not attach merely because a person holds a diplomatic title where the appointment is an artificial device and no functions have been performed. A permanent representative who is permanently resident in the United Kingdom receives immunity under the International Maritime Organisation (Immunities and Privileges) Order 2002 only while exercising official functions. The defence of financial-relief proceedings is not an official function.

The court must assess permanent residence factually and qualitatively. The individual’s intention is highly relevant but not determinative. Family life, the location of successive family homes and wider integration may carry greater weight than numerical calculations of time spent in the United Kingdom.

The applicant sought financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 following the parties’ divorce. The respondent, a Saudi businessman, applied to strike out the claim, asserting diplomatic immunity arising from his appointment as St Lucia’s Permanent Representative to the International Maritime Organisation.

The court permitted the applicant to reopen issues concerning the genuineness of the appointment, the respondent’s permanent residence, Article 39 of the Vienna Convention on Diplomatic Relations, and the scope of the real-action exception in Article 31. The central questions were whether the respondent had acquired diplomatic immunity and, alternatively, whether the proposed claims were outside or within the relevant immunity.

1. Diplomatic appointment and Article 39. The section 8 certificate issued under the International Organisations Act 1968 was conclusive evidence of the appointment and its notification, but not of the performance of diplomatic functions. The respondent had not genuinely taken up the appointment, had performed no duties, and had obtained it to defeat the applicant’s financial claims. The court therefore declined to strike out the claim on the basis of diplomatic immunity.
2. Functional nature of immunity. Diplomatic immunity exists to secure the effective performance of diplomatic functions, not to confer a personal benefit. Restrictions on access to a court are compatible with Article 6 where they reflect generally recognised rules of public international law. That justification depends on the existence of the diplomatic function protected by the immunity.
3. Permanent residence. The court applied the FCO’s 1969 guidance and the approach in Jiminez v IRC [2004] STC 371. Permanent residence required a fact-sensitive assessment, including intention, integration and the circumstances of the individual’s life. The court rejected a purely quantitative or balance-sheet approach. The respondent’s repeated choice to establish his family homes in the United Kingdom demonstrated an intention to make the United Kingdom his permanent home. He therefore failed the but-for test.
4. Effect of the IMO Order. As a permanent resident, the respondent could enjoy immunity only while exercising official functions under article 15. Defending the Part III claim was not such a function. The immunity defence consequently failed.
5. Real-action exception. The court stated that applications for financial orders transferring property on marital breakdown are generally personal claims and do not fall within the real-action exception in Article 31(1)(a) of the Vienna Convention. Claims establishing title or possession of land may instead constitute claims in rem against registered title holders. The proposed corporate-veil arguments could not satisfy the narrow general-law test confirmed in Prest v Petrodel Resources [2013] UKSC 34.
6. The respondent’s strike-out application was refused.