Diplomatic Immunity and Trafficked Domestic Workers: Insights from Basfar v Wong [2022] UKSC 20

Introduction

The case of Basfar v Wong ([2022] UKSC 20) presents a pivotal examination of diplomatic immunity within the United Kingdom, particularly in instances involving alleged exploitation and trafficking of domestic servants employed by diplomats. The appellant, Mr. Basfar, a diplomat, sought to assert immunity from a legal claim filed by Ms. Wong, his former domestic servant. Ms. Wong alleged that she was trafficked into the UK and subjected to harsh and exploitative conditions. The crux of the appeal centered on whether Mr. Basfar's employment of Ms. Wong constituted "commercial activity" under Article 31(1)(c) of the Diplomatic Convention, thereby affecting his immunity.

Summary of the Judgment

In this dissenting opinion by Lord Hamblen and Lady Rose, the central argument revolves around the interpretation of "commercial activity" within the context of diplomatic immunity. The majority had held that the normal employment of a domestic worker does not fall under "commercial activity" and hence, immunity should be preserved. The dissenting judges concurred with many of the majority's principles but diverged in their reasoning regarding whether exploitative employment relationships could be considered commercial activities.

The dissent emphasizes that defining trafficking or exploitative employment as "commercial activity" risks expanding diplomatic immunity beyond its intended scope, leading to uncertainties and potential retaliatory measures against diplomats. Furthermore, the dissent warns against the intrusive nature of tribunals needing to investigate personal and domestic aspects of a diplomat's household to determine the applicability of immunity.

Analysis

Precedents Cited

The dissent references several key cases and legal instruments to substantiate their position:

Reyes [2021] UKSC 19: Discussed how normal employment does not constitute "commercial activity."
Tabion v Mufti (1996): US case where "commercial activity" was interpreted narrowly, excluding occasional service contracts.
Sabbithi v Al Saleh (2009): US case reinforcing the narrow interpretation of "commercial activity" and upholding diplomatic immunity even in exploitative scenarios.
Montuya v Chedid (2011): Continued the trend of US courts maintaining diplomatic immunity despite allegations of harsh treatment.
Fonseca v Larren (1991): Portuguese case suggesting that hiring domestic servants for private residences is outside diplomatic immunity.
Ajayi v Abu [2017] EWHC 3098 (QB): Highlighted the complexities and intrusiveness involved in adjudicating trafficking claims within domestic settings.
Hounga v Allen [2014] 1 WLR 2889: Supreme Court case illustrating the challenges in proving trafficking and the public policy against barring claims based on such defenses.
Barnet London Borough Council v Attorney General [2021] EWHC 1253 (Fam): Addressed the intersection of international human rights instruments and state immunity.
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26: Explored the limits of state immunity in light of international conventions like the Torture Convention.

Legal Reasoning

The dissenting opinion delves deep into the interpretation of "commercial activity" as outlined in Article 31(1)(c) of the Diplomatic Convention. The judges argue that while international law and conventions like the Palermo Protocol have evolved to combat human trafficking and forced labor, these developments do not inherently alter the meaning of "commercial activity" within the Diplomatic Convention.

They contend that:

The original intent of the Diplomatic Convention's drafters did not encompass trafficked or exploited employment under "commercial activity."
Expanding the definition could undermine diplomatic immunity's scope, leading to increased complexity and potential diplomatic tensions.
The criteria for determining what constitutes "commercial activity" remain ambiguous, making legal proceedings intrusive and cumbersome.
There is a lack of consensus in international jurisprudence to support an expanded interpretation of "commercial activity" to include trafficked employment.

The dissent also highlights practical challenges, such as defining trafficking boundaries and the potential for reciprocal restrictions on UK diplomats abroad, which could jeopardize diplomatic relations and the safety of diplomats.

Impact

The dissent warns of several potential ramifications if "commercial activity" were to be interpreted broadly to include trafficked or exploitative employment:

**Legal Uncertainty:** Courts and tribunals would struggle to define and apply the scope of "commercial activity," leading to inconsistent rulings.
**Intrusiveness:** Legal proceedings would require intrusive examinations of domestic life, infringing on diplomatic privacy and potentially leading to misuse.
**Diplomatic Retaliation:** Expanding exceptions could prompt retaliatory measures from other states, harming international diplomatic relations.
**Scope Creep:** The exception could inadvertently encompass other forms of exploitation beyond trafficking, diluting the concept's original intent.

Overall, the dissent emphasizes maintaining the traditional boundaries of diplomatic immunity to preserve international comity and the effective functioning of diplomatic missions.

Complex Concepts Simplified

To aid understanding, several complex legal concepts and terminologies from the judgment are elucidated below:

Diplomatic Immunity: A principle of international law that grants diplomats protection from lawsuits or prosecution in the host country, ensuring they can perform their duties without interference.
Commercial Activity: In this context, activities undertaken by diplomats that are of a commercial or business nature, excluding their official diplomatic functions.
Article 31(1)(c) of the Diplomatic Convention: Provides exceptions to diplomatic immunity, allowing diplomats to be sued for actions outside their official functions, specifically relating to commercial activities.
Palermo Protocol: An international treaty aiming to prevent, suppress, and punish trafficking in persons, particularly women and children.
Forced Labour: All work or service extracted from any person under the menace of any penalty and for which the person has not offered themselves voluntarily.
Domestic Servitude: A severe form of forced labor where individuals are compelled to perform services in a domestic setting under threat or coercion.
Ius Cogens: Fundamental principles of international law from which no derogation is permitted.
Violated Personal Autonomy and Dignity: Situations where an individual's freedom and inherent worth are disregarded or abused.

Conclusion

The dissenting opinion in Basfar v Wong underscores a cautious approach to interpreting diplomatic immunity, especially concerning allegations of trafficking and exploitation. While acknowledging the grave nature of such allegations, the judges advocate for maintaining the established boundaries of "commercial activity" to preserve international diplomatic relations and avoid legal uncertainties. This stance highlights the intricate balance between protecting individuals' rights and upholding the sanctity of diplomatic immunity. As international norms evolve, this case serves as a critical reference point for future deliberations on the intersection of human rights and diplomatic privileges.