What Traffickers Know that the Court of Appeal Does Not

In Reyes and Suryadi v Al-Malki [2015] EWCA Civ 32 and Benkharbouche and Janah v Embassy of the Republic of Sudan and Libya [2015] EWCA Civ 33 the Court of Appeal considered two cases involving domestic work and immunity, a consideration of which reveals the discriminatory and gendered premises on which the law continues to operate. 

Ms Benkharbouche, who was employed as a cook in the Sudanese embassy, brought claims in the Employment Tribunal for unfair dismissal, failure to pay the minimum wage and breach of the Working Time Regulations 1998. Ms Janah, whose duties included cooking, cleaning and shopping, brought claims against the Libyan Embassy for unfair dismissal, arrears of pay, racial discrimination, harassment and breach of the Working Time Regulations 1998. In both cases the respondent sought to resist proceedings by asserting state immunity under the State Immunity Act 1978 (SIA). The issue for consideration was whether or not state immunity under the SIA was compatible with the applicant’s rights under Article 6 of the ECHR and Article 47 of the EU Charter. The immunity protected by the SIA is derived from the principle in international law that one state cannot sit in judgement on another. However, as paragraph 21 of the judgement states, the scope of immunities required by international law are the subject of ‘great uncertainty’ and the right is violated if a state adopts a rule restricting access to the courts which international law does not require. The Court of Appeal concluded that the SIA did go beyond what was required; it therefore issued a declaration of incompatibility under the Human Rights Act 1998 and disapplied sections of the SIA relevant to the claims based in EU law to enable those actions to proceed.

In contrast the Court, which heard both cases together, held that diplomatic immunity could successfully prevent Ms Reyes and Ms Suryadi from pursuing claims for racial discrimination, harassment and failure to pay the minimum wage following their trafficking by the Al-Malki’s into the UK for domestic servitude. The Vienna Convention on Diplomatic Relations 1961 confers on diplomats complete immunity from civil actions except in cases that concern commercial activity carried out outside of the diplomat’s official functions (Art 31(1)(c)). In a frankly breath-taking conclusion the Court of Appeal stated that although the denial of legal remedies to the trafficked women which resulted from their decision ‘may appear’ unfair, any ‘apparent inequity’ reflected a policy decision ‘already made’ which privileged diplomatic relations over individual rights (paragraph 77).

The debate in Reyes is constructed by the Master of Rolls, Lord Dyson (with whom Lady Justice Arden and Lord Justice Lloyd Jones agreed), to be primarily concerned with whether or not the positive obligations on states in relation to trafficking ‘trump’ the law on diplomatic immunity. After consideration he rightly concludes that they do not. The issue that is elided and which is so significant, is the much narrower question of whether or not someone who traffics women to ‘work’ in his household is engaged in a commercial activity that is not protected by diplomatic immunity. Whilst accepting KALAYAAN’s evidence that considerable sums of money are made in trafficking operations, Lord Dyson nevertheless concludes that the question is answered by looking at what that the ‘employee’ does, rather than at her ‘remuneration’ or the ‘circumstances’ which resulted in her ‘employment’ (paragraph 34).

The provision of services that are important for the proper running of an embassy cannot be judged ‘incidental’ when carried out in a home. The salient feature for Lord Dyson, what the employee actually does, is not changed by where she does it. The failure of the Court of Appeal to recognise what traffickers know to be the case, that women’s domestic work has considerable value, commercial and otherwise, is a result of patriarchal attitudes which essentialise and devalue women’s skills and experiences and which seek to keep issues that are the legitimate concern of human rights law outside its purview by relegating them to the private, domestic sphere. The effect of this judgement for domestic workers, who are subject to gendered immigration rules which prevent them from changing employers, is to facilitate and compound their exploitation and abuse.

For more information about migrant domestic workers and to take action on the Tied ODW Visa visit www.kalayaan.org.uk.