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Anti-trafficking victories in Supreme Court: Reyes and Benkharbouche

Anti-trafficking victories in Supreme Court: Reyes and Benkharbouche

Today, Anti-Slavery Day, the Supreme Court has handed down judgments in cases that look at the extent to which diplomatic and state immunity allow diplomats to traffic and enslave their domestic workers with impunity. Traffickers will sleep a little less easily in their beds tonight.

In Reyes v Al-Malki [2017] UKSC 61, Philippine national Cherrylyn Reyes brought a claim before the Employment Tribunal against the Saudi Arabian diplomat and his wife who had employed her at their home in London. She claimed she had been trafficked, that she had suffered racial discrimination and harassment, and that she had not been paid the national living wage. The couple claimed immunity from civil suit. 

The Supreme Court found for Ms Reyes. The employment of Ms Reyes was not in the course of Mr Al-Malki’s official functions and, as such, his immunity ended when his posting finished.

Although it was not necessary to decide the case, and therefore their view is not binding, the majority of the Court (Lord Wilson, Lady Hale and Lord Clarke) expressed the view that the law has developed since the 1961 Vienna Convention on Diplomatic Relations was promulgated, so that today trafficking should be regarded as a ‘commercial activity’ outwith diplomatic immunity. Although they are the majority, none of those three delivered the leading judgment. That was given by Lord Sumption who does not think that trafficking is a commercial activity.

Lord Wilson suggests that the International Law Commission should be invited to investigate the international acceptability of an amendment to article 31 of the Vienna Convention to put beyond doubt the exclusion of immunity in a case such as that of Ms Reyes.

Meanwhile in the Benkharbouche and Janah linked cases [2017] UKSC 62, two Moroccan domestic workers previously in the employ of the London embassies of Sudan and Libya respectively brought claims for unfair dismissal. It was contended that the states enjoyed immunity. 

The Supreme Court held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978, which confer immunity in English law, are incompatible with article 6 of the European Convention on Human Rights and Article 47 of the EU Charter. The Act discriminates unjustifiably on the grounds of nationality.

The guiding vision behind these cases has been that of the marvellous Emmy Gibbs at the Anti-Trafficking Legal Unit who instructed Tim Otty QC and Paul Luckhurst of Blackstone Chambers in both cases.

Kalayaan, of which I am chair of trustees, was able to intervene in the Reyes case thanks to pro bono support from Zubier Yazdani and Daniel Carey of Deighton Peirce Glynn, Richard Hermer QC of Matrix Chambers, Tom Hickman and Flora Robertson of Blackstone and Dr Philippa Webb of 20 Essex Street.

The AIRE Centre intervened in Benkharbouche too, represented by Aidan O’Neill QC from Matrix; he was instructed by Freshfields Bruckhaus Deringer. 4A Law Public Interest Lawyers also made written submissions.

It is a testimony to all the lawyers involved that the judgments are fascinating reads on the doctrines of diplomatic and state immunity, likely to have a global influence.

Domestic workers are all too often forgotten in the trafficking world, and domestic workers in diplomatic households all the more so. Most prefer to be treated as workers, not victims, and ask of the law empowerment, rather than rescue.  These cases represent a further step toward their empowerment. 

There is more to do. The lawyers involved will have within their sights a case to turn the obiter comments in Reyes, on trafficking as a commercial activity, into a binding judgment.

Alison Harvey is a barrister at No 5 chambers. She accepts both instructions from solicitors and direct access work. She regularly trains and lectures. She is Chair of Trustees at Kalayaan. She is a contributor to Fransman's British Nationality Law and to Macdonald's Immigration Law and Practice. A former General Secretary and then Legal Director of the Immigration Law Practitioners' Association, she has specialised in immigration, asylum, nationality, free movement and human rights for over 20 years, representing individuals and working on policy and legislation in both the the UK and overseas.

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