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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Al-Juffali v Estrada [2016] EWCA Civ 176 (22 March 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/176.html Cite as: [2017] 1 All ER 790, [2016] 2 FCR 477, [2017] 1 FLR 702, [2016] Fam Law 673, [2016] WLR(D) 163, [2016] EWCA Civ 176, [2017] Fam 35, [2016] 3 WLR 243 |
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ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
MR JUSTICE HAYDEN
FD14F00410
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE KING
and
LORD JUSTICE HAMBLEN
____________________
WALID AHMED AL-![]() | Appellant |
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- and - |
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CHRISTINA ESTRADA SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS |
Respondent Intervener |
____________________
Charles Howard QC, Tim Owen QC, Deepak Nagpal and Tom Hickman (instructed by Hughes Fowler Carruthers) for the Respondent
Tim Eicke QC, Jessica Wells and Guglielmo Verdirame (instructed by Government Legal Department) for the Intervener (intervening by written submissions only)
Hearing date: 03/03/2016
____________________
Crown Copyright ©
Master of the Rolls:
IS H ENTITLED TO IMMUNITY IN PRINCIPLE?
General International Framework
Material International and Domestic Law Provisions
"(1) Every person designated by a Member of the Organisation as its Permanent Representative or Acting Permanent Representative and the resident members of its mission of diplomatic rank shall enjoy, for the term of their business with the Organisation, the privileges and immunities set out in Article V, Section 13 of the [Specialised Agencies Convention].
(2)…
(2A) In addition to the immunities and privileges specified in paragraphs (1) and (2) of the article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the terms of their business with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.
(3) The provisions of Article V, Sections 14 and 16 and of Article VII, Section 25 of the [Specialised Agencies Convention] shall apply to the persons mentioned in paragraph (1) of this Article. Following completion of the procedures laid down by Section 25 in respect of any person, the privileges and immunities of that person shall cease on expiry of a reasonable time in which to leave the United Kingdom.
(4) The Government shall be notified by the Secretary-General, in accordance with a procedure established by the Council, of the appointment of a Permanent Representative or an Acting Permanent Representative and of each member of the mission. Paragraphs (1) to (3) of this Article shall not apply to any person unless and until his name and status are duly notified to the Government,
(5)…Paragraphs (2) and (2A) shall not apply to any person who is permanently resident in the United Kingdom; paragraphs (1) and (2A) shall only apply to a person so resident while exercising his official functions. "
"(1) Except in so far as in any particular case any privilege or immunity is waived by the Government of the member whom he represents, every person designated by a member of the Organisation as its Principal Permanent Representative or acting Principal Permanent Representative to the Organisation in the United Kingdom, and members of their family forming part of their household, shall enjoy for the term of his business with the Organisation:
(a) the like immunity for suit and legal process as is accorded to the head of a diplomatic mission;
(b) …
(c) …
(d) …
(e) …
(f) …
(g) …
Provided that sub-paragraphs (d) to (h) of this paragraph shall not apply to any person who is a permanent resident of the United Kingdom, and sub-paragraphs (a) to (c) shall apply to any such person only while he is exercising his official functions."
"1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. "
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.
"1. For the accreditation of a Permanent Representative to IMO the Member Government concerned shall make known in writing to the Secretary-General the name and rank of the person designated for that purpose."
2. (a) Where a Member Government wishes to accredit as Permanent Representative a person who is not already or will not be accredited to the Government of the United Kingdom, it shall inform the Secretary-General of the name and rank of such person before accreditation…
(b) The Secretary-General shall inform the Government of the United Kingdom of the nomination and the Government may express its views thereon to the Secretary-General.
(c) Where the Government of the United Kingdom raises an objection to a person so nominated, consultations shall take place between the Secretary-General and the Government of the United Kingdom."
"….a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact."
The appointment of H
"The cumulative impact of this case law is, in my judgement, to identify a balance that has evolved, designed to protect the 'functionality' or 'effectiveness' of a mission and to recognise the need to minimise abuse of diplomatic immunity. It is this balance which both underlies the policy considerations and establishes the proportionality of the restriction in ECHR terms. If 'functionality' is extracted from the equation, because no functions have been discharged or, to adopt Diplock LJ's terms, the diplomat is not 'en poste', there can remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such is the case both the policy considerations and the proportionality of restriction cannot be justified in Convention terms and cannot be said to pursue a legitimate claim sufficient to eclipse W's right of access to a court."
"H has sought and obtained a diplomatic appointment with the sole intention of defeating W's claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a 'sham', mindful of the forensic precision required to support such a conclusion."
WAS H ENTITLED TO IMMUNITY IN PRINCIPLE?
"Privileges and immunities are accorded to the representatives of members, not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the specialised agencies. Consequently, a member not only has the right but is under a duty to waive the immunity of its representatives in any case where, in the opinion of the member, the immunity would impede the course of justice, and where it can be waived without prejudice to the purpose for which the immunity is accorded. "
"74. In the previous cases where a FCO certificate or letter has been issued, the court has treated the question of whether a person is a diplomatic agent as settled by the question of whether the receiving state has accepted the accreditation of the sending state or not. Whilst acceptance is not an act that itself affords the immunity, it is regarded by the courts as good evidence of the fact of membership of diplomatic staff. The fact that the courts have not previously asked more searching questions and sought evidence of the precise activity that has been performed suggests that such an inquiry was considered unnecessary.
75. There would be real difficulties and uncertainties if the court were to undertake the inquiry that the claimant contends it should. The sending state is not obliged to provide evidence and the nature of any exchanges in which the person concerned may have engaged might well be something that both states would prefer not to disclose. A functional inquiry may well result in information not known to the FCO being examined and opens the door to the real possibility that conflicting factual findings are made between the court and the FCO, with the result that the one voice principle is undermined.
76. If the FCO has good reason to believe that the status of diplomat and membership of the staff of a mission is being abused by the sending state to promote the personal convenience of the propositus, there may be representations made that immunity is waived by the sending state or that the person ceases to be a member of a mission. In the last resort, a person may be declared persona non grata, but even in those circumstances I anticipate that in the light of VCDR Art 9 (2) and 39 (2) some time to leave the country would be afforded before any immunity ceased.
77. Leaving the control mechanism for termination of an appointment in the hands of the FCO, if it considers appropriate, avoids the risk of inconsistency and leaves the exercise of the prerogative untrammelled by a rival judicial enquiry. The prerogative power of conducting foreign relations is exercised by the executive through the FCO and not by the courts; that power includes the exercise of waiver where considered expedient. If private commercial activity by a member of the diplomatic staff of a mission has been taking place in breach of Article 42,that may be the subject of waiver by the receiving state. Equally a receiving state may be content to accept a member of diplomatic staff even if that person is not engaged in such a function full time.
78. The sending state's freedom of appointment under Article 7 goes beyond the identity of the appointee and extends to the rank to which the person is appointed, as well as the instructions as to the activity to be appointed to and the degree of time spent on it. If both the receiving and sending state are aware that a diplomat is spending significant periods of time on other matters, that may be a reason to terminate the appointment but it does not follow that immunity does not apply while the person remains an accredited diplomat."
"if the court can go behind [a statement made on behalf of the UK Government that a person has or has not been recognised as a member of the diplomatic staff of a foreign ambassador] and themselves seek to investigate the facts, compelling the person on behalf of whom immunity is claimed to submit to legal process, it would be impossible for His Majesty to fulfil the obligations imposed on him by international law and the comity of nations, since the steps taken to investigate the claims would in themselves involve a breach of diplomatic immunity which in the event the Court might decide to have been established."
This was accepted by the House: see per Lord Buckmaster at p 446-7, Viscount Dunedin at p 448 and Lord Phillimore at p 455.
"I would add for my part that even if I felt that both of those prior points were wrong, it is almost impossible to say that a man who is employed by a government to go to foreign countries to conclude purely commercial agreements, and not to negotiate in any way or have contact with the other government, can be said to engaged on a diplomatic mission at all."
"Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone."
Article 6 of the ECHR
"In short, the court held that compliance with a state's international law obligations is conclusive on the issue of proportionality. In my view, although there are important differences between state immunity and diplomatic immunity, these differences are immaterial to the point of principle that the court enunciated at para 36 [of the ECtHR decision in Fogarty]. The central point is that restrictions on the right of access to court which reflect generally recognised rules of public international law cannot in principle be regarded as disproportionate. The court added that this is so even if international practice as to the meaning or scope of an international obligation is inconsistent, provided that the interpretation applied by the state in question is reasonable and falls within currently accepted international standards."
"(e) the Convention, including art.6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention's special character as a human rights treaty, and it must also take the relevant rules of international law into account (see, among other authorities and mutatis mutandis, Loizidou v Turkey (1997) 23 EHRR 513 at [43]; Al-Adsani at [55]; and Nada v Switzerland (2013) 56 EHRR 18 AT [169]). The Convention should so far as possible, be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of immunity to a state (the Court would add: or to an international organisation) (see Loizidou at [43]; Fogarty at [35]; Cudak at [56]; and Sabeh el Leil at [48]);
(f) measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity (the Court would add: or the immunity of international organisations) cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in art.6(1). Just as the right of access to a court is an inherent part of the fair trial guaranteed in that article, so some restrictions on access must likewise be regarded as inherent. Examples are those limitations generally accepted by the community of nations as part of the doctrine of immunity from domestic jurisdiction, whether it concerns the immunity of a foreign sovereign State or that of an international organisation (see Fogarty at [36]; and Cudak at [57]);"
"In addition to the immunities and privileges specified in paragraphs (1) and (2) of this Article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the term of their businesses with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law."
"…brings the United Kingdom into step with accepted practice for UN specialised agencies based elsewhere in the world and will allow senior representatives and officials at the IMO to enjoy the same status as they would enjoy if attached to UN specialised agencies in, for example, Paris, Geneva, Vienna or Rome" (HL Deb 10 July 2002, vol 637, col 766).
Conclusion on whether H is entitled in principle to immunity
THE PERMANENT RESIDENCE ISSUE
The meaning of "permanently resident"
"1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions."
"When determining whether or not a particular member of your staff should be regarded as a permanent resident of the United Kingdom the test should normally be whether or not he would be in the United Kingdom but for the requirements of the sending State. In applying this test, I suggest that you should be guided by the following considerations:
(i) The intention of the individual: a person should be regarded as permanently resident in the United Kingdom unless he is going to return to his own country as soon as his appointment in the United Kingdom ends. It is suggested that points which may be relevant to this question include the links of the individual with the State which he claims as his home, e.g. payment of taxes, participation in social security schemes, ownership of immovable property, payment of return passage by the sending State.
(ii) The prospect of the individual being posted elsewhere as a career member of the service: he should be regarded as permanently resident in the United Kingdom if his appointment in the United Kingdom is likely to continue or has continued for more than five years, unless the Head of Mission states that the longer stay in the United Kingdom is a requirement of the sending State and not a result of personal considerations.
(iii) Local recruitment of the individual: a person who is locally engaged is presumed to be permanently resident in the United Kingdom unless the Head of Mission concerned shows that he is going to return to his own country or to proceed to a third country immediately on the termination of his appointment in the United Kingdom; and
(iv) Marital status of the individual: a woman member of the Mission who is married to a permanent resident of the United Kingdom is presumed to be herself permanently resident in the United Kingdom from the time of her marriage unless the Head of Mission shows that in addition to her satisfying the other criteria, there remains a real prospect in view of the special circumstances of her case that she will be posted as a normal career member of the service."
"This guidance has been followed by the UK in administering privileges since 1969 and, although consultations as envisaged have sometimes taken place, it has not generally been challenged by missions in London…..The key test in the Circular was whether the individual was resident in the receiving State for a purpose unconnected with the holding of the status of membership of the mission….
A number of other countries have since 1969 drawn up practice guidelines on the meaning of 'permanently resident in the receiving State' which are broadly similar to those applied by the United Kingdom." (paras 10.17 and 10.18)
The facts relating to permanent residence
"M, D and H have at times studied in the UK and DrJuffali
did travel to the United Kingdom to visit them during their studies."
Mr Alammari did not however address, obliquely or at all, the issue of where the children lived during their childhood, the period with which the judge was concerned.
The judge's findings and assessment
"(i) H is an international businessman with a peripatetic existence throughout the world;
(ii) H has the use of properties in various countries, including e.g. UK, Saudi Arabia;
(iii) H frequently spends protracted periods in the UK;
(iv) H has close family members in Saudi Arabia including his mother and grandmother whom he visits regularly;
(v) The only property which is vested in H's own name (the remainder being subject to various trusts) is in Saudi Arabia. It is, according to the evidence, a substantial property located on a 13,000 m² plot;
(vi) H is a Saudi national, domiciled in Saudi Arabia;
(vii) H's UK visa permits him to remain in the UK for no more than 180 days per year but there is no restriction on the number of visits to the UK or any requirement that a specified time must elapse between visits;
(viii) H has now been married three times. There are children from each of the marriages. The family home in each marriage has been in the UK and all the children have (so far) been brought up in the UK;
(ix) W is 53, she has lived permanently in the UK since 1989, including throughout the marriage to H i.e. since 2001. There is no dispute that she is 'habitually resident' in this jurisdiction. She has been granted indefinite leave to remain;
(x) S, the couple's child, now aged 13 years has lived her entire life in this jurisdiction.
(xi) Bishopsgate, a one hundred million pound property in Windsor Great Park has been the family home throughout the marriage."
"65. In my survey of the background of H's life (at para 51, above) I have endeavoured to identify key facts which point to permanent residence being established either in Saudi Arabia or in the UK. The fact that H does not enjoy leave to remain in the UK and that he is only permitted to visit for 180 days per year seems to drag the conclusion towards Saudi Arabia. Mr Pointer's team have spent considerable time and effort drawing up a table setting out the number of nights H has spent in the UK on a yearly basis since 2009. That data has been further refined to include the average duration of trips to the UK and also the unbroken sequence of days spent here. This is helpful so far as it goes but, in my view, a qualitative rather than quantitative assessment is likely to illuminate intention more accurately. Of all the matters identified at para 50 one is, to my mind, magnetic in its attraction. H has been married three times. On each occasion the marriage produced children. For each reconstituted family unit the family home was based in the UK. W herself is habitually resident in the UK. The children of the first two marriages have all been educated here and, inevitably, all speak English. The youngest child, now from the third marriage, is pre-school age. There are three homes in the UK.
66. Where a man chooses to live with his wife and children, and I emphasise the element of choice, says a great deal, to my mind, about where he intends his home to be. When the circumstances of his life cause him to repeat that same decision throughout three marriages, it seems to me to signal an intention which is 'unlimited in period', to adopt Langton J's phrase and therefore to qualify as permanent. I very much agree with Mr Pointer that both the case law and the Circular require me to give significant weight to H's intentions but I have, on the facts of this case, come to a different conclusion from that contended by Mr Pointer. The evidence points very strongly, in my view, to establishing that these were the arrangements before H's appointment and, on the basis that past behaviour is often a reliable predictor of future intention, the status quo was likely to continue. On this basis H also fails the 'but for' test in Jiminez v IRC (see para 48 above). By way of completeness I should add that I have not found it necessary to deploy either Article 6 of the ECHR or section 3 of the HRA to construe the meaning of permanent residence.
Conclusion on the permanent residence issue
"Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way."
OVERALL CONCLUSION
Lady Justice King:
Lord Justice Hamblen: