Category Archives: EU law

State Immunity: Arfan Khan leads in the UK Supreme Court

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State Immunity/Supreme Court

Arfan Khan leads the 4A Law written intervention submissions in the United Kingdom Supreme Court. The intervention concerned a landmark State Immunity appeal.  The Court of Appeal set aside the State Immunity Act 1978 in order to give effect to Article 47 of the EU Charter. It declared the State Immunity Act 1978 incompatible with Article 6 of the ECHR. In the Court of Appeal, Arfan Khan appeared as lead Counsel for 4A Law. On appeal to the Supreme Court, Arfan Khan led for 4A Law and secured permission to intervene, which was opposed. Thereafter written submissions were filed.  Amongst other issues, these submissions addressed the application of Article 6 of the ECHR, Article 47 of the EU Charter, customary international law (including the test for identifying the same), procedural and substantive bars, absolute/restrictive immunity, and the application of these principles to employment claims falling within the material scope of EU law. The Supreme Court judgment has been reserved. The substantive hearing can be viewed through the Supreme Court website, where Arfan Khan was instructed to appear in the context of the 4A Law written submissions:

https://www.supremecourt.uk/watch/uksc-2015-0063/060617-pm.html

Justices

Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption.

Judgment appealed:

[2015] EWCA Civ 33:

Parties

Appellants

Secretary of State for Foreign and Commonwealth Affairs

[Libya]

[Embassy of the Republic of Sudan]

Respondent

[Ms Fatima Ahmed Benkharbouche]

Ms Minah Jonah

Interveners

The AIRE Centre

4A LAW Public Interest Lawyers Ltd

From the Supreme Court website:

“Issue

Whether granting immunity from suit under the State Immunity Act 1978 engages, and breaches, the Respondents’ rights under the European Convention on Human Rights (ECHR) and EU Charter.

Facts

Ms Janah was employed as a member of the domestic staff at the Libyan Embassy in London. Ms Benkharbouche was employed in the Sudanese Embassy. Following dismissal from their employment, the claimants issued claims in the Employment Tribunal. Libya and Sudan claimed immunity from suit under the State Immunity Act 1978. The claimants responded that barring their claims would breach Article 6 and/or Article 14 of the ECHR and/or Article 47 of the EU Charter. The Court of Appeal accepted the claimants’ arguments, making a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 and disapplying the State Immunity Act 1978 in respect of the elements of the claims within the scope of EU law. The Secretary of State was joined to proceedings at the Court of Appeal stage as entitled under section 5 Human Rights Act 1998”.

State Immunity and EU law intervention in the Court of Appeal

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State Immunity and EU law intervention in the Court of Appeal

Arfan Khan, a leading Barrister, successfully led for the intervener, 4A law, in a landmark Court of Appeal case on State Immunity. The case is known as the Benkarbouch v Libya and Sudan, 4A law & others intervening [2015] EWCA Civ 33. It is reported in the press: see http://www.bbc.co.uk/news/uk-31149298. The full judgement is available at http://www.bailii.org/ew/cases/EWCA/Civ/2015/33.html

The intervention raised novel submissions adverse to the position of the UK government, the State of Libya, and Sudan. The intervention was opposed by the Secretary of State for the Foreign and Commonwealth office. Ellias LJ, and the Master of the Rolls, granted 4A law permission to intervene. As a result, 4A law became a party to the appeal, and received credit for assisting the Court in arriving at its decision.

The intervention relied on extensive state practice, including authorities not previously referred to in the proceedings, including Mohamdia v People’s Democratic Republic of Algeria [2013] ICR 1, as applied by the Irish Employment Appeal Tribunal, Case C-555/07 Kucukdeveci v Swedex [2010] IRLR 346,  and Curra v. Bundesrepublic Deutschland, 12 July 2012 (Third Chamber).

Amongst other arguments, the intervention in summary submitted that the State Immunity Act 1974, s 4 (2) (b) and 16 1 (a), could not be read down, and should be set aside in order to give effect to directly enforceable rights under EU law. The intervention submitted that there was no rule of customary international law preventing low level employment claims, falling with the material scope of EU law, from being brought, and that the European Convention on State Immunity (ECSI) did not assist. The intervention contended that the present case should not be confused with the decision of Lord Mance in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271, as the disapplication in the present case was in accordance with EU law.

The Court of Appeal (Lord Dyson, Master of the Rolls, Lady Justice Arden, and Lord Justice Lloyd Jones), held that “the court is required, pursuant to section 2(1) European Communities Act 1972, to disapply sections 4(2)(b) and 16(1)(a) SIA, in their application to those parts of the claims which fall within the scope of EU law”, and granted a declaration of incompatibility.

Lady Justice Arden distinguished the decision of Lord Mance in Chester holding that “Unlike the position in Chester, the scope of the disapplication in this case is clear”. The right to an effective remedy under Article 47 was a general principle of EU law, with the result that Article 47 had horizontal direct effect.

The Court held that contracting states are not required to apply the rules set out in ECSI to matters concerning privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts. The Court held that the authorities were inconsistent with view that international law requires immunity in all employment claims by the service staff of a mission.

Click here for the judgement:

Benkharbouche judgment

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Landmark appeal concerning diplomatic immunity

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Diplomatic Immunity, EU Law, Public International law

Arfan Khan, successfully led the 4A law intervention in a ground breaking decision of the Court of Appeal involving diplomatic immunity and public international law. The case is known as Reyes & Anor v Al-Malki & Anor [2015] EWCA Civ 32. The full judgment is at http://www.bailii.org/ew/cases/EWCA/Civ/2015/32.html

In this appeal the Claimants were successful before the ET. Judge Lewis held that “the exception under article 31 (1) (c) of the Vienna Convention, read consistently with art 6 of the European Convention on Human Rights, applied”.

On appeal to the Employment Appeal Tribunal (EAT), Langstaff J (President) upheld the claim to immunity – it being conceded by the Claimant for the purposes of the appeal that this was not “a commercial activity”, and assertion of diplomatic immunity was not a breach of Article 6 of the ECHR. The ET’s jurisdiction, being statutory, did not extend to the investigation of trafficking and, therefore, the claim based on article 4 of the ECHR was rejected. The ET held that service had been validly affected.

The Claimant, Ms Reyes, appealed contending that “the first and second respondents do not have diplomatic immunity”. The Respondent cross appealed on the issue of service.

4A law intervened on appeal. The intervention was opposed by the Secretary of State for the Foreign and Commonwealth Office. However, 4A law was granted permission to intervene by the Master of the Rolls and Ellias LJ.

The 4A law intervention, amongst other points, in summary contended:

1. A breach of contract for personal profit or gain is not immune from the jurisdiction of the Court as it constitutes commercial activity.

2. According to the US authority of Tabion v Mufti, which had been applied in the US, certain employment contracts, incidental to the functions of the mission, do not fall within the commercial activity exception to immunity.

The Court of Appeal (Master of the Rolls, Arden LJ and Lloyd Jones LJ), drawing on public international law jurisprudence, held that private activity for personal gain did not attract immunity. A private act for profit fell within the jurisdiction of the receiving state in relation to that activity. In doing holding so the Court used Article 42 of the Vienna Convention which states “A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity..”. In the words of the Court:

“..if the diplomatic agent … embarks on a private activity for profit, he becomes subject to the jurisdiction of the receiving State in relation to that activity. The use of the same words in article 31(1)(c) and article 42 shows that there is a clear link between the two provisions. The link is that, if the diplomatic agent acts in breach of article 42, he will not enjoy the immunity that article 31(1)(c) would otherwise afford him”.

The Court held that Tabion could not be brushed aside, and that there was no immunity in relation to acts carried outside official functions.

The Court of Appeal dismissed the appeals and the cross appeals.

Arfan Khan successful in insolvency appeal

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Arfan Khan successful in insolvency Appeal. The Court of Appeal held that protective awards were debts provable in the liquidation.

The first instance judge had regarded himself as bound by Glenister v Rowe ([2000] Ch 76) and R (Steele) v Birmingham City Council ([2006] ICR 869). He held that the tribunal had a discretion not to make the awards, and therefore the awards were not provable. This was held to be the case even though it was submitted on behalf of the employees that the tribunal had no such discretion.

The appeal was allowed for two interlinked reasons: (i) as a matter of language, the liability to pay a protective award stemmed from the preliquidation breach of obligation, and (ii) given the complete breach of the obligation to consult, the employment tribunal realistically did not have a discretion to refuse an award. Under EC Directive 98/59, the tribunal was duty bound to make the awards. An employment law analysis of the case, based on Directive 98/59/EC and Susie Radin Ltd v GMB ([2004] ICR 893), provided a powerful basis upon which to distinguish both Glenister and Steele.

Arfan Khan appeared for the successful employee representative.

Status of Protective Awards