No residual diplomatic immunity for non-official acts


Re: Reyes v Al-Malki & Anor [2017] UKSC 61

This case considered whether an employment tribunal has jurisdiction to hear claims brought by the appellant, under the exception to diplomatic immunity contained in the Vienna Convention on Diplomatic Relations, 1961, art 31(1)(c), and whether the respondents were validly served with proceedings. The Supreme Court unanimously allowed the appeal and dismissed the cross-appeal. The cross-appeal was dismissed as the Court held that the claim form was validly served with no violation of  the protections conferred on diplomats and their residences respectively by the Convention, art 29 and 30 as the service of a claim form by post merely convey information, not involving any trespass against the diplomat’s person or residence. The appeal was allowed because the Convention draws a fundamental distinction between the acts of a diplomat which are performed in the exercise of an “official function” and those which are not. Whilst immunity attaches to both types of act whilst the diplomat is in post, upon leaving the receiving state, immunity is ordinarily limited to a “residual immunity” under art 39(2) , attaching only to the former acts. The employment of the appellant to carry out domestic tasks in the residence of the respondents was not an act in the exercise of diplomatic functions and therefore, as the respondents have now left the UK at the end of the posting, they cannot claim residual immunity against claims regarding the acts, and as such the Supreme Court remitted the case to the employment tribunal to be determined at trial.

Richard Hermer QC was involved in this case.