Benkharbouche v Embassy of the Republic of Sudan

The Supreme Court considered whether sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 are compatible with the right of access to a court under article 6 of the European Convention on Human Rights and with article 47 of the EU Charter. Section 4(2)(b) exempts from jurisdiction claims by employees where, at the time the contract was made, the employee was neither a United Kingdom national nor habitually resident in the United Kingdom; section 16(1)(a) excludes employees of diplomatic missions from the section 4 exceptions. The court analysed whether those statutory immunities are supported by customary international law, concluding that customary international law follows the restrictive doctrine (immunity for jure imperii, not jure gestionis) and does not justify broad immunities for ordinary embassy employees or for third‑country nationals recruited abroad.

Applying those principles, the court held that the statutory provisions, insofar as they bar access to the courts for the claimants in these appeals, are incompatible with article 6 ECHR. The court confirmed that employment disputes are governed in international law by the jure imperii/jure gestionis distinction; a mere absence of nationality or habitual residence at the time of contracting does not of itself found an international law immunity. The court therefore dismissed the Secretary of State’s appeal, affirmed the Court of Appeal’s order and remitted the EU law claims to the Employment Tribunal to be determined on the merits; it also endorsed a declaration of incompatibility in respect of the domestic law claims which remain barred by the Act.

Background and parties. Two claimants, Ms Janah and Ms Benkharbouche (both Moroccan nationals), sued their respective employers (Libya and Sudan) in the Employment Tribunal in respect of dismissal, unpaid wages, breaches of the Working Time Regulations and, in Ms Janah’s case, discrimination and harassment. Both had worked in London for foreign diplomatic missions. The tribunals dismissed the claims on grounds of state immunity under the State Immunity Act 1978.

Procedural history. The Employment Appeal Tribunal held that sections 4(2)(b) and 16(1)(a) should be disapplied insofar as they prevented claims based on EU law, relying on article 47 of the EU Charter. The Court of Appeal affirmed the EAT and issued a declaration of incompatibility under the Human Rights Act 1998. The Secretary of State appealed to the Supreme Court; Sudan did not participate and Libya was prevented from pursuing its appeal for failure to provide security for costs.

Nature of the issues. The court was asked to determine (i) whether sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 are compatible with article 6 ECHR (right of access to a court) and article 47 of the EU Charter; (ii) whether the Act reflects a rule of customary international law which requires the United Kingdom to give effect to immunity in these circumstances; and (iii) whether the statutory provisions discriminate on grounds of nationality contrary to article 14 read with article 6.

Court’s reasoning. The court reviewed the history and structure of the State Immunity Act, international conventions (including the European Convention on State Immunity and the United Nations Convention on Jurisdictional Immunities), and the Strasbourg case law (notably Al‑Adsani, Fogarty, Cudak and Sabeh El Leil). It emphasised that identification of customary international law requires both state practice and opinio juris. The court concluded that customary international law follows the restrictive doctrine: immunity applies to acts jure imperii but not to acts jure gestionis. There is no sufficient international consensus to support an absolute immunity for employment claims of ordinary embassy staff or for employees recruited abroad who are third‑country nationals. The Vienna Convention on Diplomatic Relations does not require absolute immunity for domestic staff and does not preclude damages claims; it only limits remedies that would interfere with appointment or reinstatement. The court also considered, and rejected, the Secretary of State’s argument that domestic policy or a “tenable” view of international law would justify the statutory rules if customary international law were uncertain.

Subsidiary findings and remedies. The court observed that particular aspects of an employment relationship (for example matters touching national security, recruitment policy or reinstatement) may nevertheless raise sovereign interests and be immune. It held that sections 4(2)(b) and 16(1)(a), insofar as they bar the claimants’ access to the courts, are incompatible with article 6; section 4(2)(b) also fails when read with article 14 in this context. The court dismissed the Secretary of State’s appeal, affirmed the Court of Appeal, disapplied the statutory provisions for the EU law claims and remitted those claims to the Employment Tribunal; a declaration of incompatibility was recognised for other domestic law claims which remain barred.

Contextual note: the judgment discusses the tension between domestic courts and Strasbourg jurisprudence on the effect of a want of jurisdiction under international law, but resolves the present cases on the basis that no customary international law immunity applied to the facts.

Appeal dismissed. The Supreme Court held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 cannot be justified by customary international law because customary international law follows the restrictive doctrine (immunity for jure imperii only). Those statutory provisions therefore unjustifiably bar access to a court in breach of article 6 ECHR (and section 4(2)(b) also in breach of article 14 read with article 6). The Court therefore affirmed the Court of Appeal, disapplied the provisions so far as they prevented adjudication of the EU law claims and recognised the basis for a declaration of incompatibility for the domestic law claims; the EU law claims were remitted to the Employment Tribunal to be heard on the merits.

Employment Tribunal: claims dismissed on grounds of state immunity. Employment Appeal Tribunal: sections 4(2)(b) and 16(1)(a) disapplied insofar as they prevented EU law claims (EAT). Court of Appeal: affirmed the EAT and made a declaration of incompatibility; reported at [2015] EWCA Civ 33. Appeal to the Supreme Court: Secretary of State appealed; Sudan did not participate in CA proceedings and did not appeal; Libya did not pursue its permission to appeal to the Supreme Court for failure to provide security for costs. Supreme Court judgment given 18 October 2017 affirming the Court of Appeal.