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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Estrada v Al-Juffali (Rev 1)  EWHC 213 (Fam) (08 February 2016)
Cite as:  1 FLR 669,  Fam Law 294,  EWHC 213 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| Christina Lynn Estrada
|- and -
|Walid Bin Ahmed Abdallah Al-Juffali
Mr. Martin Pointer QC, Mr Martin Chamberlain QC and Mr Nicholas Wilkinson (instructed by Mishcon de Reya LLP) for the Respondent
Hearing dates: 18th, 19th, 20th, 21st and 22nd January 2016
Crown Copyright ©
Mr Justice Hayden :
Whether the Respondent (H) is a permanent resident of the United Kingdom for the purposes of the International Maritime Organisation (Immunities and Privileges) Order 2002 (the IMO order).
Whether or not the Applicant's claim falls within the 'real action' exemption for the purposes of Article 31 of the Vienna Convention on Diplomatic Relations 1961 (VCDR) is not an issue which needs to be determined within these proceedings.
Article 39 of the VCDR
"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."
i) The Court must consider whether a person claiming diplomatic immunity enjoys that immunity at the time of the court's determination and not before. These arguments are rooted in the judgments in Empson v Smith  1 QB 426;
ii) Article 39 (1) and (2) require evidence that a post has been 'taken up' and that diplomatic functions have been undertaken in order to benefit from immunity under the Diplomatic Privileges Act 1964;
iii) Whilst in most cases an assertion by a 'sending' State that a person performs a diplomatic function will carry great weight as to the true position, this is not to be regarded as inviolable.
If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act 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."
An identical provision is contained in section 8 of the International Organisations Act 1968 which applies in the present case.
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.
2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
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.
The function of a diplomatic agent comes to an end, inter alia:
(a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
(b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the mission.
The States Parties to the present Convention,
Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents,
Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,
Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,
Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,
"When the action was commenced in March, 1963, the defendant was entitled under section 1 (1) (a) of the Act of 1952 "to the like immunity from suit and legal process as is accorded to members of the official staff of an envoy of a foreign sovereign power." He was thus entitled so long as he remained en poste to complete immunity from civil suit in the United Kingdom, both as respects acts done in his official capacity on behalf of his government and as respects acts done in his private capacity. This immunity he could, however, lose at that date in one of two ways: first, as respects acts done in either capacity if his immunity were waived by the head of his mission on behalf of the Government of Canada (see Act of 1952, s. 1 (5) (a)): Taylor v. Best; In re Suarez; or secondly, but only as respects acts done in his personal capacity if he should cease to be en poste and a sufficient time had elapsed thereafter for him to wind up his affairs: Magdelena Steam Navigation Co. v. Mart; Musurus Bey v. Gadban; Zoernsch v. Waldock"...
…"If the defendant had applied before the passing of the Diplomatic Privileges Act, 1964, to have the plaintiff's action dismissed there would have been no answer to his application. But he delayed until November, 1964. By that date his right to immunity from civil suit had been curtailed by that Act which applies to the United Kingdom the provisions of the Vienna Convention on Diplomatic Relations, 1961, contained in the schedule to the Act."…
…"It is elementary law that diplomatic immunity is not immunity from legal liability but immunity from suit. If authority is needed for this it is to be found in Dickinson v. Del Solar, which has been cited by my brother Danckwerts L.J."…
…"It follows therefore that until steps were taken to set it aside or to dismiss the action the plaintiff's plaint was no nullity: it was a valid plaint. If the defendant had, with the permission of his High Commissioner, appeared to it before October 1, 1964, the procedural bar to the hearing would have been removed. So, too, if the defendant had ceased to be en poste while the plaint was still outstanding the action could then have proceeded against him. I can see no reason in logic or the law of nations why the position should be any different when the procedural bar has been removed by Act of Parliament — particularly when that Act of Parliament gives statutory effect to an international convention, by which sovereign states have mutually waived in part immunities for members of the staff of their foreign missions to which they were formerly entitled by the law of nations."…
"Article 31, GENERAL RULE OF INTERPRETATION
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended."
35. Article 31 (3) (c) of the Vienna Convention indicates that account is to be taken, together with the context, of 'any relevant rules of international law applicable in the relations between the parties'. Among those rules are general principles of law and especially 'general principles of law recognized by civilised nations' [Statute of International Court of Justice, Art 38(1)(c)]. Incidentally, the Legal Committee of the Consultative Assembly of the Council of Europe foresaw in August 1950 that 'the Commission and the Court must necessarily apply such principles' in the execution of their duties and thus considered it to be 'unnecessary' to insert a specific clause to this effect in the Convention.
The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally 'recognised' fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 (1) must read in the light of these principles.
Were Article 6 (1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the Court cannot overlook.
It would be inconceivable, in the opinion of the Court, that Article 6 (1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.
36. Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the right stated by Article 6 (1). This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6 (1) read in its context and having regard to the object and purpose of the Convention, a lawmaking treaty, and to general principles of law.
The Court thus reaches the conclusion, without needing to resort to 'supplementary means of interpretation' as envisaged at Article 32 of the Vienna Convention, that Article 6 (1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal."
…"the court can and should accept that a general principle in favour of submitting civil claims to a court and the principle against a denial of justice (which are embodied in, but not synonymous with, Article 6) are legitimate interpretative principles when conducting treaty interpretation under Article 31(3)(c) of the Vienna Convention on the Law of Treaties."
"3. Interpretation of legislation.
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility."
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 connexion with the specialized 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."
"The court held that the article 6(1) right of access to court is not absolute (para 33). It first considered whether the limitation of the right (in that case state immunity) pursued a legitimate aim (para 34). It held that the grant of sovereign immunity to a state in civil proceedings pursues the legitimate aim "of complying with international law to promote comity and good relations between States through respect of another State's sovereignty". I would hold that, by analogy, the recognition of diplomatic immunity in civil proceedings pursues the legitimate aim of complying with a State's international law obligations to prevent hindrance to the diplomat in performing his functions. I do not believe this to be controversial."
"36. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.
37. The Court observes that, on the material before it, there appears to be a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes. However, where the proceedings relate to employment in a foreign mission or embassy, international practice is divided on the question whether State immunity continues to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only more senior members of the mission. Certainly, it cannot be said that the United Kingdom is alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity, the United Kingdom falls outside any currently accepted international standards.
38. The Court further observes that the proceedings which the applicant wished to bring did not concern the contractual rights of a current embassy employee, but instead related to alleged discrimination in the recruitment process. Questions relating to the recruitment of staff to missions and embassies may by their very nature involve sensitive and confidential issues, related, inter alia, to the diplomatic and organisational policy of a foreign State. The Court is not aware of any trend in international law towards a relaxation of the rule of State immunity as regards issues of recruitment to foreign missions. In this respect, the Court notes that it appears clearly from the materials referred to above (see paragraph 19) that the International Law Commission did not intend to exclude the application of State immunity where the subject of proceedings was recruitment, including recruitment to a diplomatic mission.
39. In these circumstances, the Court considers that, in conferring immunity on the United States in the present case by virtue of the provisions of the 1978 Act, the United Kingdom cannot be said to have exceeded the margin of appreciation allowed to States in limiting an individual's access to court."
"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. 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."
"74. Diplomatic immunity by contrast is functional in nature. The preamble to the 1961 Convention records that "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States". Thus, as Mr Eicke says, even if the detailed rules of international law relating to state immunity have been altered by the 2004 Convention, it does not follow that the international law principles relating to diplomatic immunity must follow suit."
"189. As to the proportionality of the restriction, the need to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity, has led to the Court to conclude that measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. The Court explained that just as the right of access to court is an inherent part of the fair trial guarantee in Article 6 § 1, so some restrictions must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State…..
191. In Al-Adsani (cited above) decided in 2001, the Court found that it had not been established that there was yet acceptance in international law of the proposition that States were not entitled to immunity in respect of civil claims for damages concerning alleged torture committed outside the forum State. There was therefore no violation of Article 6 § 1 where the domestic courts had struck out the applicant's claim against Kuwait for civil damages for torture in application of the rules of State immunity contained in the 1978 Act. The same conclusion was reached in 2002 in Kalogeropoulou and Others, cited above, in respect of the refusal of the Greek Minister of Justice to grant leave to the applicants to expropriate German property in Greece following a judgment in their favour concerning crimes against humanity committed in 1944. However, the Court there indicated that its finding in Al-Adsani did not preclude a development in customary international law in the future….
193. The applicants argued that the Court should depart from the approach of the Grand Chamber in Al-Adsani to the extent that the latter had failed to conduct a substantive proportionality assessment, including an assessment of the circumstances and merits of the individual case, and in particular to consider whether alternative means of redress existed.
194. In Al-Adsani the decisive question when assessing the proportionality of the measure was whether the immunity rules applied by the domestic courts reflected generally recognised rules of public international law on State immunity.
195. Having regard to the precedent established by Al-Adsani and the detailed examination in that judgment of the relevant legal issues by reference to this Court's case-law and international law, the Court does not consider it appropriate to relinquish the present case to the Grand Chamber. In elaborating the relevant test under Article 6 § 1 in its Al-Adsani judgment, the Court was acting in accordance with its obligation to take account of the relevant rules and principles of international law and to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part……"
"….there may appear to be some unfairness to the person against whom the invocation occurs. But it must be remembered that the outcome merely reflects policy choices already made. Policymakers….have believed that diplomatic immunity not only ensures the efficient functioning of diplomatic missions in foreign states, but fosters good will and enhances relations among nations. Thus, they have determined that apparent inequity to a private individual is outweighed by the great injury to the public that would arise from permitting suit against the entity or its agent calling for application of immunity. "
i) It is implicit in the analysis of the law presented by counsel that a 'host government' does not and is not required to carry out 'strict scrutiny and due diligence' on an ambassadorial appointment to an international organisation located in London. As I have stated above the section 8 certificate is conclusive evidence only of the bald facts stated within it;
ii) H is apparently an extremely wealthy Saudi citizen with no pre-existing connection to St Lucia. Article 8.1 of the VCDR makes clear that 'members of the diplomatic staff of the mission should in principle be of the nationality of the sending State (here St Lucia):
Article 81. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
iii) On the 3rd December 2015 the St Lucian Government, in a press release published in the St Lucia Times, announced that H has pledged significant resources towards the expansion of the local health sector which will impact positively on the health needs of St Lucians, particularly in the area of diabetic research. Whilst this may establish a basis for H as a trade or 'investment envoy' it does not establish a basis for an ambassadorial appointment;
iv) A??s a specialized agency of the United Nations, the IMO is the global standard-setting authority for the safety, security and environmental performance of international shipping. Its main role is to create a regulatory framework for the shipping industry that is fair and effective, universally adopted and universally implemented;
v) There is no evidence that H has any knowledge or experience of maritime matters, seaborne trade, shipping or indeed of any of the specialised areas with which the IMO is concerned;
vi) It is clear that since his appointment H has not undertaken any duties of any kind in the pursuit of functions of office;
vii) W has provided persuasive evidence that H's health is such that he is not in a position at present to fulfil any of his ambassadorial duties; it may well be that this point is not contentious.
viii) The appointment coincided with the emergent relationship between H and his third wife.
"15. A number of different principles, rules or doctrines (call them what you will) may come into play if it is said that some document or transaction is not in truth entirely what it purports to be. The following list is not intended to be exhaustive, but what I have in mind would include, for example:
i) The principle that the court looks to the substance rather than the label: Street v Mountford  AC 809.
ii) The approach adopted by the court when faced with a pre-ordained series of transactions or a composite transaction which includes an artificial step inserted for no commercial purpose: W T Ramsay Ltd v Inland Revenue Commissioners  AC 300, Furniss v Dawson  AC 474 and Craven v White  AC 398.
iii) The principle that in certain circumstances the court can 'pierce the corporate veil': see most recently Mubarak v Mubarak  1 FLR 673 (not affected on this point by the decision on appeal,  1 FLR 698).
iv) The approach adopted by the court when faced with the assertion that property conveyed to another is in fact held on a resulting trust for the transferor: see, for example, Tinker v Tinker  P 136.
v) The doctrine of sham as defined in Snook v London and West Riding Investments Ltd  2 QB 786 at page 802.
vi) The various statutory provisions entitling the court to set aside conveyances or other transactions entered into with intent to defeat or defraud creditors. Conceptually analogous to such provisions is the provision familiar to practitioners in this Division, section 37 of the Matrimonial Causes Act 1973, which enables the court to set aside transactions intended to prevent or reduce financial relief under the Act.
vii) The approach adopted by the matrimonial court when faced with the assertion that the "financial resources" available to a spouse within the meaning of section 25(2)(a) of the Matrimonial Causes Act 1973 include some asset which is either not the property of the spouse (for example, an expectation of future bounty from a friend or relative) or in relation to which he has less than an absolute interest (for example, the interest of the beneficiary of a discretionary trust): see Thomas v Thomas  2 FLR 668 and, most recently, Charman v Charman  EWCA Civ 1606,  2 FLR 422.
16. I draw attention to these various different types of case in part to make the point that conceptually they proceed on very different – and in some cases completely inconsistent – bases. There is, I suppose, no difficulty, other than possible forensic embarrassment, in pleading inconsistent cases in the alternative, but it is important to recognise that due to their analytical inconsistency many of these doctrines can operate only as alternatives. "
"it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create."
Whether H is a permanent resident of the United Kingdom for the purposes of the International Maritime Organisation (Immunities and Privileges Order 2002)
"15. 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 from suit and legal process as is accorded to the head of a diplomatic mission;
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) A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(3) No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence."
i) the immunity in Article 15(1) (a) of the IMO Order applies in full (and not just in relation to acts done in an official capacity) where the principal permanent representative is not a permanent resident of the United Kingdom; and
ii) where the principal permanent representative is a permanent resident of the United Kingdom, the immunity applies only "while he is exercising his official functions".
a) he is not permanently resident in the United Kingdom;
b) none of the exceptions contained in the Vienna Convention applies; and
c) the immunity is compatible with Articles 6 and 8 of the ECHR.
Neither the IMO order nor the VCDR define the term 'Permanent Resident'.
"When regarding 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:
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.
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.
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
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 tiem 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.
Should a difference of opinion arise between a Mission and Her Majesty's Government as to whether an individual is permanently resident in the United Kingdom, I suggest that each side should inform the other of any relevant evidence which may be in their possession."
"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 been generally challenged by missions in London."
"68. Turning to the question of whether Mrs Jiminez was 'permanently resident' in the United Kingdom, this, also, of course, is a question of interpretation of the 1961 Convention. The principles of the interpretation of treaty provisions which I have set out above apply to this question also. I must apply 'broad principles of general acceptation' in the search for the 'true autonomous and international meaning' of the expression as it is used in the context of art 37(3) of the 1961 Convention."
69. In accordance with art 31(3) of the Vienna Convention on the Law of Treaties (referred to by Lord Steyn in ex parte Adan – see para 43 above) I ought to take into account 'any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation'. Mr Qureshi has informed me that the provisions of the 1969 FCO Circular (which certainly records 'subsequent practice in the application of the treaty' bearing on the meaning of 'permanently resident') have never been challenged by the Heads of Mission in the United Kingdom (and Mr Ewart did not dissent from this). Therefore I consider I should have regard to it in accordance with art 31(3) of the Vienna Convention on the Law of Treaties, and I further consider that it is reflective of customary international law which, by the fifth indent of the Preamble to the 1961 Convention 'should continue to govern questions not expressly regulated by the provisions of the  Convention.
70. The terms of para 3 of the 1969 FCO Circular (see para 43 above) as applied to this case lead to the conclusion that Mrs Jiminez should [not] be regarded as permanently resident in the United Kingdom for the purposes of art 37(3) of the 1971 Convention.
71. I reject Mr Ewart's submission that it is appropriate for me to decide this question by analogy with the English law rules relative to the acquisition of a domicile of choice. It seems to me that the intention of permanent or indefinite residence which falls to be considered in the context of the domicile issue is not the same (or even a similar) concept as or the concept of whether a person who is a foreign national is permanently resident in the receiving state, so as thereby to be deprived of privileges and immunities (including exemption from tax) under the 1961 Convention. I am not surprised by the conclusion that 'permanently resident' for these purposes effectively means resident for a purpose unconnected with the holding of the status of membership of the mission. In this sense, it is simply the converse of impermanently resident for the purposes of the mission."
All agree that the [not] referred to at paragraph 70 above was an error.
"a person who is locally engaged (that is, engaged or appointed while he is living in the UK) is presumed to be permanently resident in the UK 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 UK".
i) the intentions of the individual (as revealed by payment of tax, participation in social security schemes, ownership of immovable property, and payment of return passage by the sending State);
ii) the prospect of the individual being posted elsewhere as a career member of the service;
iii) the local recruitment of the individual; and
iv) the marital status of the individual.
"Finally I wish to add one further observation relating to paragraph 29 of Ryder LJ's judgment where my Lord suggests that it may be helpful for judges facing the task of analysing competing welfare issues to gain assistance by the use of a 'balance sheet'. Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours."
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.
i) Acquisition of a domicile of choice in Canada would satisfy the permanent residence test – "a fortiori that person is permanently resident in Canada" (Denza (2008), p 422).
ii) It is necessary to look at the facts of each case.
iii) Canada would look at an extended period of residence, immigration status, "and other facts establishing a remoteness or unlikelihood (for physical, financial, familial, political reasons) to leave Canada in the foreseeable future.
iv) Immigration status is not determinative. It is persuasive, but (for example), the loss of a particular given immigration status does not necessarily mean the end of permanent residence.
i) Whether the person took up residence for personal reasons or at the direction of the sending State.
ii) Whether the recruitment was local or from overseas, and whether the person would be repatriated at the end of their tenure, together with their family.
iii) The length of time present in Australia (whether continuously or in aggregate).
iv) Any intent to make a permanent home in Australia, and any conduct consistent with that intention.
v) Whether that person had married a citizen or permanent resident of Australia.
vi) The links the person has to Australia and to the sending State, "that are relevant to determining to which community the person is more likely to belong., such as ownership of residential accommodation, participation in pension or superannuation schemes etc."
i) Paid the cost of the employee's transportation to the USA.
ii) Undertake to transfer the employee and their family out of the USA after the post ended.
iii) Undertake to pay the cost of the relocation after the post.
Germany, Switzerland and the Netherlands
"'Permanently resident' is a term used in the Diplomatic Privileges Act to describe an individual who was living in the UK at the time of his appointment, or who has subsequently made his permanent home here. (It should not be confused with the concept of residence for tax purposes). Protocol Department takes permanent residence and citizenship into account when considering an individual's entitlement to diplomatic privilege. "
"Drawing the threads together, therefore:
i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.
iii) The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.
iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.
vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.
55. So which approach accords most closely with the factual situation of the child – an approach which holds that presence is a necessary pre-cursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child's integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been."
"Suffice it to say that the word "permanent" seems to me here to make all the difference, for the notion or "concept," as Roxburgh J. said, of "taking up" and, thereafter, maintaining, in a particular country your permanent residence, is, I should have thought, one perfectly well understood and sufficiently precise… "
…If a synonym be required, I would say that the condition of taking up permanent residence in England was another way of saying making England your permanent home; that is to say, residing in England with the intention of continuing to reside there until you die…
…If that be the meaning, such a question as "Do you cease to reside in England if you spend 11 months of the year on the Continent?", though it may be, in vacuo, a difficult question to answer, is in this context irrelevant…
…but the state of a man's mind, as has been said many times, is as much a question of fact as the state of a man's digestion, and the use of the word "permanent" inevitably, I think, imports into the formula the notion of the intention of the person concerned. You cannot take up a permanent residence at any particular point of time, unless at the time you take up residence you intend that it should be permanent, that is, that you should go on living there for your natural days. Though no doubt to ascertain the state of a man's mind is a question which may involve difficulties, as I have already indicated by reference to the speech of Lord Simonds L.C. in Bromley v. Tryon, that difficulty of ascertainment is not by any means fatal to a clause of this kind."
"In other word, the intention must be a present intention to reside permanently, but it does not mean such intention must necessarily be irrevocable. It must be an intention unlimited in period but not irrevocable in character…"
"Whether any or all of the claims and declarations referred to in paragraph 3 [of the draft order] are not directly against the respondent and, consequently, in respect of which no issue of immunity arises, or in the event that they are directly against the respondent, whether any or all of them fall within the real action exemption within Article 31 of the VCDR"
(i) a variation of a nuptial settlement (pursuant to section 24 of the Matrimonial Causes Act 1973 imported into Part III by virtue of section 17 of the 1984 Act), which the applicant asserts is not a claim directly against the respondent and, consequently, no issue of immunity arises;
(ii) the creation of a settlement (pursuant to section 24 of the Matrimonial Causes Act 1973 imported into Part III by virtue of section 17 of the 1984 Act) which the applicant asserts is not a claim directly against the respondent and, consequently, no issue of immunity arises;
(iii) a declaration that the applicant has an interest in the following:
1. Bishopsgate House, Bishopsgate Road Englefield Green, Egham, Surrey, TW20 0XU ("Bishopsgate House") or Blakestone Limited (or any trusts, whose estate comprises the legal title of the shares of Blakestone Limited); and
2. Matthew Point Manor, Strete, Dartmouth ("Matthew Point Manor") or C Point Holdings Limited (or any trusts, whose estate comprises the legal title of the shares of C Point Holdings Limited)
by virtue of a constructive trust or proprietary estoppel, which the applicant asserts are not claims directly against the respondent and, consequently, no issue of immunity arises or in the event that they are claims directly against the respondent, they fall within the real action exemption within Article 31 of the VCDR (Auth:1/11).
(iv) a declaration that the respondent has an interest in the following:
1. Bishopsgate House or Blakestone Limited (or any trusts, whose estate comprises the legal title of the shares of Blakestone Limited);
2. Matthew Point Manor or C Point Holdings Limited (or any trusts, whose estate comprises the legal title of the shares of C Point Holdings Limited);
3. St Saviours House, Walton Street, London, SW3 1SA or Walton International Holdings Limited (or any trusts, whose estate comprises the legal title of the shares of Walton International Holdings Limited);
by virtue of a constructive trust or a resulting trust, which the applicant asserts are not claims directly against the respondent and, consequently, no issue of immunity arises or in the event that they are claims directly against the respondent, they fall within the real action exemption within Article 31 of the VCDR (Auth:1/11).
(v) a declaration that the respondent has an interest in the following:
1. the proceeds of the sale of 7 Old Park Lane, London W1
by virtue of a constructive trust or a resulting trust, which the applicant asserts is not a claim directly against the respondent and, consequently, no issue of immunity arises.
"whether, as a matter of law, any of the claims and declarations that W wishes to pursue either (a) do not require orders to be made against H or (b) fall within the real action exemption contained in Article 31 of the Vienna Convention on Diplomatic Relations ("VCDR")(Auth:1/11). If the answer to either (a) or (b) is in the affirmative, H's strike out application must be dismissed."
"The remainder of this skeleton argument therefore proceeds on the assumption (which assumption, in light of W's case in relation to Issue 1 and 2, is, of course, not accepted) that H prima facie has diplomatic immunity pursuant to Article 15 of the International Maritime Organisation (Immunities and Privileges) Order 2002 ("IMOO")(Auth:4/1) in relation, inter alia, to the civil jurisdiction"
"… whatever the meaning [of 'real action'], it is clear that the injunctive relief sought by the wife restraining the husband from dealing with various items of property is, if an action at all, an action in personam against the husband and not a 'real action' in any of the senses put forward by the commentators cited above. Similarly, the wife's application under section 79 seeking that the husband transfer to her the home unit in Queensland and the motor vehicle is not a 'real action' in any of the senses cited but a request, as it were, for the court to alter the parties' existing legal and perhaps equitable interests."
The judge also refused the wife's amended claim for a declaration that the husband held the matrimonial home on trust for her. She held that:
"It seems to me that the wife's application is so essentially connected to her marriage to the respondent that the real issue before the court is what are the rights of the applicant and the respondent as parties to a marriage.
Because that is the whole nexus of the wife's application the submission that her amended application is a 'real action' (even if it were clear just what that means in this context) is an attempt to fit it into a procrustean bed which was not designed to accommodate it".
"The Supreme Court affirmed at  that, as a matter of general law, a court may pierce the corporate veil if and only if that owner/controller deliberately seeks to avoid an existing legal obligation by interposing the company. The Supreme Court then confirmed at - that the Matrimonial Causes Act 1973 does not give the court any broader power to pierce the corporate veil than that already available under the general law. Allowing a broader power in ancillary relief claims would cut across the schemes of company and insolvency law, which are essential for the protection of those dealing with companies. As Lord Sumption made clear at , "[t]here is nothing in the Matrimonial Causes Act 1973 and nothing in its purpose or broader social context to indicate that the legislature intended to authorise the transfer by one party to the marriage to the other of property which was not his to transfer." See also Lady Hale at , to the same effect."
Note 1 [Back]
Note 1 [Back]