FOURTH SECTION
DECISION
Application no. 12917/19
Nicolas BUTTET
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 15 March 2022 as a Chamber composed of:
Yonko Grozev, President,
Armen Harutyunyan,
Gabriele Kucsko-Stadlmayer,
Pere Pastor Vilanova,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
Sir Paul Girvan, ad hoc judge,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above application lodged on 4 March 2019,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the decision taken by the President of the Chamber to appoint Sir Paul Girvan to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Tim Eicke, the judge elected in respect of the United Kingdom, had withdrawn from the case (Rule 28 of the Rules of Court);
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Nicolas Buttet, is a French national, who was born in 1978 and lives in Auzeville-Tolosane. He was represented before the Court by Ms S. Marker of Bindmans LLP, a lawyer practising in London.
2. The Government were represented by their Agent, Ms L. Stallard of the Foreign, Commonwealth and Development Office.
3. This application arises out of an employment claim brought by the applicant against his former employer before the English courts. His former employer – the Government of France – successfully asserted that it was entitled to immunity from jurisdiction of the English courts by virtue of the State Immunity Act 1978 (“the 1978 Act” – see paragraph 24 below). The 1978 Act renders a foreign State immune from the jurisdiction of a United Kingdom court in a claim based on the foreign State’s employment of the claimant, where the claimant, at the time when the proceedings were brought, was a national of the State concerned (section 4(2)(a) of the 1978 Act); where the claimant, at the time the contract was made, was neither a United Kingdom national nor habitually resident in the United Kingdom (section 4(2)(b) of the 1978 Act); or where the claimant worked for the foreign State’s diplomatic mission (section 16(1)(a) of the 1978 Act).
The circumstances of the case4. The facts of the case, as submitted by the applicant, may be summarised as follows.
5. The applicant was employed as a security guard at the French Embassy in London between 1 September 2008 and 12 October 2012. His contracts of employment described his duties as follows:
“Les prestations consistent à assurer la sécurité de la Résidence (y compris le jardin), la réception des appels téléphoniques, l’accueil et l’information des visiteurs.
[The duties consist of ensuring the security of the residence (including the garden), answering telephone calls, and welcoming visitors].”
6. On 12 October 2012 he was dismissed without notice. The applicant brought a claim against his employer for unfair dismissal, automatic unfair dismissal and breach of contract. In response, his employer invoked State immunity pursuant to sections 16(1), 4(2)(a) and 4(2)(b) of the 1978 Act (see paragraph 24 below).
7. In his application to the Court, the applicant relies on a witness statement dated 18 December 2018 in which he asserts that he was permanently resident in the United Kingdom at the time the proceedings before the Employment Tribunal were instituted. In the statement, he claims that he held a number of jobs in the United Kingdom and rented a number of properties following the termination of his employment at the French embassy. He has submitted no documentation in support of his claim to have been permanently resident since as a French national he did not need a residence permit to reside in the United Kingdom at the relevant time.
8. In the same witness statement, the applicant further contends that his employment at the embassy was purely private in nature. He asserts that he was one of three security guards employed at the Ambassador’s residence. His role involved patrolling the ambassador’s residence and garden, ensuring that doors and windows were kept shut, answering telephone calls, and welcoming and confirming the identities of guests. There was no sensitive, strategic or intelligence element to his role; he was not informed of the detail of events or of the identity of any visitors in advance of their arrival, he had no access to, or information about, the nature of the visits which took place at the residence, and no access to any sensitive or confidential information.
The staying of the applicant’s claim9. The applicant’s claim was stayed by the Employment Tribunal pending the conclusion of the domestic proceedings in Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v. Janah. In that case, the claimants, both of whom had been domestic workers at foreign embassies in the United Kingdom, argued that sections 4(2)(b) and 16(1)(a) of the 1978 Act (see paragraph 24 below) were incompatible with Article 6 of the Convention.
10. Those proceedings concluded on 18 October 2017 with a judgment of the Supreme Court (see paragraphs 28-39 below). In that judgment, the Supreme Court held that there was no basis in customary international law for the application of State immunity in an employment context to acts of a private law character (such as the employment of purely domestic staff in a diplomatic mission). It therefore held that neither section 4(2)(b) nor section 16(1) of the 1978 Act could be justified by any principle of international law and, accordingly, they were incompatible with Article 6 of the Convention. It also found section 4(2)(b) of the 1978 Act to be incompatible with Article 14 of the Convention. As it did not consider that it was possible to “read down” the literal wording of the 1978 Act to avoid the conclusion that the applicants’ claims were barred it upheld a declaration of incompatibility which had been made by the Court of Appeal under section 4 of the Human Rights Act 1998 (see paragraph 26 below).
11. The Supreme Court further found section 4(2)(b) and section 16(1) of the 1978 Act to be incompatible with Article 47 of the Charter of Fundamental Rights of the European Union (“the EU Charter” – see paragraph 48 below), which meant that those provisions could be disapplied in respect of any employment claims which fell within the scope of European Union law.
The dismissal of the applicant’s claims by the Employment Tribunal12. On 17 September 2018 the Employment Tribunal dismissed the applicant’s claims of unfair dismissal, automatic unfair dismissal and breach of contract (see paragraph 6 above) on the basis that the respondent had not submitted to the jurisdiction of the Tribunal; the respondent had defended all claims on the basis of sections 4(2) and 16 of the 1978 Act because the applicant was a national of the respondent State (see section 4(2)(a) of the 1978 Act); and the respondent State did not concede that the Tribunal had jurisdiction under section 4(2)(b) of the 1978 Act. As such, no factual findings were made by the Tribunal. The applicant was, however, given leave to amend his claim to include a claim under EU law for holiday pay.
13. On 22 August 2019 the Employment Tribunal dismissed the claim for holiday pay on the basis that it did not have jurisdiction to hear it by reason of the 1978 Act. As the respondent had submitted to the jurisdiction only for the purpose of claiming state immunity, the Tribunal heard argument from the parties on this point.
14. The applicant argued that section 4(2)(a) of the 1978 Act should be disapplied pursuant to Article 47 of the EU Charter. A State could only invoke immunity in an employment claim where there was a separate principle of customary international law which permitted it to do so. In Benkharbouche and Janah the Supreme Court had found that section 4(2)(b) of the 1978 Act was incompatible with customary international law because it did not distinguish between acts of sovereign authority and private acts. However, section 4(2)(a) also made no such distinction and the applicant therefore contended that it too should be disapplied. The applicant also relied on Article 11(2)(e) of The United Nations Convention on Jurisdictional Immunities of States and their Property 2004 (“the 2004 UN Convention” – see paragraph 42 below), which permitted a State to claim immunity in an employment dispute where, inter alia, the claimant was a national of the employer State at the time when the proceeding was instituted, unless he had permanent residence in the State of the forum. Section 4(2)(a), on the other hand, did not contain the permanent residence qualification and, as such, the applicant argued that it went further than customary international law permitted.
15. The applicant further argued that sections 4(2)(a) and 4(2)(b) of the 1978 Act were discriminatory of grounds of nationality.
16. Before the Tribunal the respondent had argued that the engagement of a security guard to patrol diplomatic premises constituted an exercise of sovereign authority as it involved the security of diplomatic premises which had a unique character in international law and which were inviolable. The applicant, however, submitted that the functions he performed as a security guard were not such that he was exercising sovereign authority. He accepted that there were public international law aspects to Embassies, but submitted that there should be a closer nexus to the Ambassador or State’s functions themselves and that a bodyguard might come closer to performing State functions. In his view, the functions he performed were analogous to a private commercial contract.
17. On the morning of the hearing the applicant’s representatives produced a witness statement which was given to the respondent moments before the hearing. It is not clear whether this statement is identical to the statement submitted to the Court in support of the present application (see paragraph 7 above). In the statement the applicant addressed the nature of his residence in the United Kingdom. However, the applicant did not attend the hearing. The judge was informed that he was in France but no evidence was presented as to why he did not travel to the United Kingdom to give evidence in person at the hearing. In the circumstances, the representatives said that they were content for the witness statement not to be relied on. As a consequence, the Tribunal could not make, and did not make, any finding as to whether the applicant was a permanent resident of the United Kingdom. As the applicant had not demonstrated or evidenced this point, he had not shown the Tribunal that he was a permanent resident at the time when the proceedings were instituted.
18. The Tribunal held that the respondent did not have the burden of proving that state immunity applied; rather, the burden lay on the applicant to prove that it did not. It took as a starting point the “persuasive” obiter comments of Lord Sumption at paragraph 64 of the Supreme Court judgment in Benkharbouche and Janah to the effect that section 4(2)(a) of the 1978 Act “may have a sound basis in customary international law” (see paragraph 37 below). It also had regard to Article 11(2)(e) of the 2004 UN Convention (see paragraph 42 below), which in its view represented customary international law. As the applicant had, at the hearing, withdrawn reliance on a statement to the effect that he had been permanently resident in the United Kingdom when the proceedings were instituted, the Tribunal accepted that the exemption in Article 11(2)(e) provided the French Government with immunity under customary international law.
19. As for the applicant’s role at the embassy, the Tribunal noted that pursuant to Article 22 of the Vienna Convention on Diplomatic Relations 1961 (see paragraph 44 below) the premises of a mission were inviolable. It therefore accepted that the security of a diplomatic mission had a unique character in international law. Consequently, the Tribunal distinguished between the applicants in Benkharbouche and Janah, who were engaged in duties such as housekeeping, cooking and cleaning, and the applicant, who in providing security and protection to the inviolable and unique character of mission premises was not carrying out purely a domestic function. The question of security of such premises might involve dealing with confidential security information particular to that State. Therefore, the Tribunal accepted that the applicant was performing State functions and thus a sovereign act in the guarding of the mission premises.
20. In respect of the applicant’s claim that section 4(2)(a) of the 1978 Act was discriminatory (see paragraph 15 above), the Tribunal further found that if the grant of immunity was consistent with customary international law, then any difference in treatment was justified. In any event, the applicant was at no disadvantage in the application of section 4(2)(a) of the 1978 Act as he had not established permanent residence.
21. In conclusion, the Tribunal held that section 4(2)(a) of the 1978 Act was not incompatible either with Article 47 of the Charter of the European Union or with Article 6 of the Convention.
22. The applicant did not appeal against either the 2018 or 2019 judgment (see paragraphs 10 and 13 above).
Subsequent developments23. According to the Ministry of Justice’s report to the Joint Committee on Human Rights on the Government’s response to human rights judgments 2019-2020, dated December 2020, the Government “is considering options for addressing the declaration of incompatibility” made by the Supreme Court in Benkharbouche and Janah (see paragraph 10 above). However, on 23 February 2021 the Government informed Parliament of their intention to make a remedial order pursuant to section 10(2) and schedule 2 of the Human Rights Act 1998 (see paragraph 27 below) to remove the incompatibility identified by the Supreme Court.
Relevant domestic law and practiceThe State Immunity Act 197824. The relevant provisions provide as follows:
“1(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this part of this Act.
...
3(1) A State is not immune as respects proceedings relating to -
(a) a commercial transaction entered into by the State;
(b) an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.
...
(3) In this section “commercial transaction” means -
(a) any contract for the supply of goods or services;
(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and
(c) any other transaction or activity (whether of a commercial industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority;
but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual.
4(1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there.
(2) Subject to subsections (3) and (4) below, this section does not apply if -
(a) at the time when the proceedings are brought the individual is a national of the State concerned; or
(b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or
(c) the parties to the contract have otherwise agreed in writing.
...
16(1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and
(a) section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968.”
25. The Convention scheduled to the Diplomatic Privileges Act of 1964 is the Vienna Convention on Diplomatic Relations (1961) (see paragraphs 44 and 45 below). Article 1 of that Convention defines “members of a mission” as including the “staff of the mission in the domestic service of the mission”.
The Human Rights Act 199826. The Human Rights Act provides, insofar as relevant:
3 Interpretation of legislation
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”
4 Declaration of incompatibility
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.”
27. If a provision of legislation has been declared under section 4 to be incompatible with a Convention right, the Government have the power to make a Remedial Order. Details of this power are set out in section 10(2) and Schedule 2 to the Human Rights Act 1998.
Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v. Janah [2017] UKSC 6228. The applicants in these cases were domestic workers in embassies in London who had brought claims against their former employers. Ms Janah was a Moroccan national who was resident in Libya when she was recruited to work at the embassy in London. Thereafter she was resident, but not permanently resident, in the United Kingdom. Ms Benkharbouche was also a Moroccan national. She was working at the Sudanese embassy in Iraq when she was engaged to work at the embassy in London. By the time of her dismissal, she was permanently resident in the United Kingdom, having been granted indefinite leave to remain.
29. The applicants’ claims were dismissed by different judges in the Employment Tribunal on the ground that the employers were immune by operation of the 1978 Act. In Ms Janah’s case, this was because she had never been a Libyan national and was not a national or permanent resident of the United Kingdom at the time when her contract was made. Both section 4(2)(b) and section 16(1)(a) of the 1978 Act therefore applied to her. In Ms Benkharbouche’s case, it was because section 16(1)(a) applied to her. There were no findings about whether the facts of her case brought her within section 4(2)(b) of the 1978 Act.
30. The applicants appealed against that decision, arguing that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 were incompatible with Article 6 of the Convention, because they unjustifiably barred access to a court to determine their claims. Article 4(2)(b) was also said to be incompatible with Article 14 of the Convention, read in conjunction with Article 6, because it unjustifiably discriminated on grounds of nationality. The Employment Appeal Tribunal (“the EAT”) declared that sections 4(2)(b) and 16(1)(a) of the Act should be disapplied so far as they prevented the applicants from bringing claims based on EU law, on the ground that they were contrary to the right of access to a court guaranteed by Article 47 of the EU Charter (see paragraph 48 below). Leave to appeal to the Court of Appeal was granted, inter alia, in order to enable it to consider whether to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 (see paragraph 26 above). The Court of Appeal affirmed the judgment of the EAT, disapplying the relevant provisions so far as they applied to the EU law claims. It also made a declaration of incompatibility affecting all the claims, whether founded on domestic or EU law.
31. On appeal to the Supreme Court, Lord Sumption JSC (with whom Baroness Hale of Richmond PSC, Lord Wilson, Lord Neuberger of Abbotsbury and Lord Clarke of Stone-cum-Ebony agreed) delivered a unanimous judgment. He identified the question at issue in the appeal as:
“whether two provisions of the State Immunity Act 1978 are consistent with the European Convention on Human Rights and the European Union Charter of Fundamental Rights.”
32. Having considered the relevant jurisprudence of the Court, he doubted whether Article 11 of the United Nations International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property 1991 (“the Draft Articles” – see paragraph 40 below) or Article 11 of the 2004 UN Convention (see paragraph 42 below) could be said in their entirety to reflect customary international law. Rather, he took the view that under customary international law the restrictive doctrine of State immunity applied to contracts of employment: that is, that State immunity was recognised only in respect of acts done by a state in the exercise of sovereign authority (jure imperii), as opposed to acts of a private law nature (jure gestionis). With regard to the distinction between the exercise of sovereign authority and private law acts, he noted:
“55. The Vienna Convention on Diplomatic Relations divides the staff of a diplomatic mission into three broad categories: (i) diplomatic agents, ie the head of mission and the diplomatic staff; (ii) administrative and technical staff; and (iii) staff in the domestic service of the mission. Diplomatic agents participate in the functions of a diplomatic mission defined in article 3, principally representing the sending state, protecting the interests of the sending state and its nationals, negotiating with the government of the receiving state, ascertaining and reporting on developments in the receiving state and promoting friendly relations with the receiving state. These functions are inherently governmental. They are exercises of sovereign authority. Every aspect of the employment of a diplomatic agent is therefore likely to be an exercise of sovereign authority. The role of technical and administrative staff is by comparison essentially ancillary and supportive. It may well be that the employment of some of them might also be exercises of sovereign authority if their functions are sufficiently close to the governmental functions of the mission. Cypher clerks might arguably be an example. Certain confidential secretarial staff might be another: see Governor of Pitcairn v Sutton (1994) 104 ILR 508 (New Zealand Court of Appeal). However, I find it difficult to conceive of cases where the employment of purely domestic staff of a diplomatic mission could be anything other than an act jure gestionis. The employment of such staff is not inherently governmental. It is an act of a private law character such as anyone with the necessary resources might do.
56. This approach is supported by the case law of the European Court of Human Rights, which I have already summarised. In Cudak, Sabeh El Leil, Wallishauser and Radunović, all cases concerning the administrative and technical staff of diplomatic missions, the test applied by the Strasbourg Court was whether the functions for which the applicant was employed called for a personal involvement in the diplomatic or political operations of the mission, or only in such activities as might be carried on by private persons. In Mahamdia v People’s Democratic Republic of Algeria (Case C‑154/11) [2013] ICR 1, para 55-57, the Court of Justice of the European Union applied the same test, holding that the state is not immune ‘where the functions carried out by the employee do not fall within the exercise of public powers’. The United States decisions are particularly instructive, because the Foreign State Immunity Act of the United States has no special provisions for contracts of employment. They therefore fall to be dealt with under the general provisions relating to commercial transactions, which have been interpreted as confining state immunity to exercises of sovereign authority: see Saudi Arabia v Nelson 507 US 349, 360 (1993). The principle now applied in all circuits that have addressed the question is that a state is immune as regards proceedings relating to a contract of employment only if the act of employing the plaintiff is to be regarded as an exercise of sovereign authority having regard to his or her participation in the diplomatic functions of the mission: Segni v Commercial Office of Spain 835 F 2d 160, 165 (7th Cir, 1987), Holden v Canadian Consulate 92 F 3d 918 (9th Cir, 1996).”
33. Lord Sumption therefore concluded that section 4(2)(b) of the 1978 Act was not justified by any binding principle of international law as it did not distinguish between the exercise of sovereign authority and private law acts.
34. He further found that since section 16(1)(a) extended state immunity to the claims of any employee of a diplomatic mission, irrespective of the sovereign character of the employment or the acts of the state complained of, it was plain that it could not be justified by reference to any general principle of immunity based on the restrictive doctrine.
35. In light of the foregoing, Lord Sumption found that the employment of Ms Janah and Ms Benkharbouche were clearly not exercises of sovereign authority, and nothing about their alleged treatment engaged the sovereign interests of their employers. Nor were they seeking reinstatement in a way that would restrict the right of their employers to decide who is to be employed in their diplomatic missions. As a matter of customary international law, therefore, their employers were not entitled to immunity as regards these claims. It followed that so far as sections 4(2)(b) or 16(1)(a) of the 1978 Act conferred immunity, they were incompatible with Article 6 of the Convention.
36. Although the applicants had not complained about section 4(2)(a) of the 1978 Act, Lord Sumption made the following comments about whether immunity should extend to a State’s contracts with its own nationals:
“There is a substantial body of international opinion to the effect that the immunity should extend to a state’s contracts with its own nationals irrespective of their status or functions even if the work falls to be performed in the forum state; and correspondingly that it should not extend to staff recruited from the local labour force in whose protection the forum state has a governmental interest of its own. Both propositions received substantial support in the preparatory sessions leading to the United Nations Convention and were reflected in the final text of article 11. Both receive a measure of recognition in the Vienna Convention on Diplomatic Relations which carefully distinguishes between the measure of immunity accorded to the staff of a diplomatic mission according to whether they are nationals of the foreign state or nationals or permanent residents of the forum state: see articles, 33.2, 37, 38, 39.4 and 44. In a practical sense, it might be thought reasonable that a contract between a state and one of its own nationals should have to be litigated in the courts of that state under its laws, but unreasonable that the same should apply to locally recruited staff. There is, however, only limited international consensus on where the boundaries lie between the respective territorial responsibilities of the foreign and the forum state, and on how far the territorial principle can displace the rule which confers immunity on acts jure imperii but not on acts jure gestionis.”
37. He further noted, at paragraph 64, that under the terms of the 1978 Act:
“immunity does not attach to employment in the local labour market, ie where the contract was made in the United Kingdom or the work fell to be performed there: see section 4(1). However, this is subject to sections 4(2)(a) and (b), which are concerned with the employee’s connections by nationality or residence with the foreign state (section 4(2)(a)) or the forum state (section 4(2)(b)). Section 4(2)(a) extends the immunity to claims against the employing state by its own nationals. As I have said, this may have a sound basis in customary international law, but does not arise here. Section 4(2)(b) extends it to claims brought by nationals or habitual residents of third countries. Both subsections apply irrespective of the sovereign character of the relevant act of the foreign state.”
38. With regard to Article 14 of the Convention, he considered that:
“Ms Janah’s case that the discriminatory character of section 4(2)(b) of the Act is a violation of article 14 of the Human Rights Convention, read in conjunction with article 6, adds nothing to her case based on article 6 alone. Section 4(2)(b) unquestionably discriminates on grounds of nationality. The only question is whether the discrimination is justifiable by reference to international law. If state immunity is no answer to the claim under article 6 alone, then it is no answer to the claim under the combination of article 6 and article 14. In my view, the denial of access to the courts to persons in her position is unjustifiable whether it is discriminatory or not.”
39. The Supreme Court therefore dismissed the Secretary of State’s appeal and affirmed the order of the Court of Appeal. The result was that sections 4(2)(b) and 16(1)(a) of the 1978 Act would not apply to the claims derived from EU law.
Relevant international materialThe United Nations(a) United Nations International Law Commission (ILC) Draft Articles on Jurisdictional Immunities of States and Their Property 1991
40. The relevant part of the text reads as follows:
Article 11 – Contracts of employment
“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform functions closely related to the exercise of governmental authority;
(b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;
(d) the employee is a national of the employer State at the time when the proceeding is instituted; or
(e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.”
41. In the commentary on the ILC’s Draft Articles, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in the legislative and treaty practice of a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14).
(b) The United Nations Convention on Jurisdictional Immunities of States and their Property 2004
42. In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. The Draft Articles were used as the basis for the text. The final version of Article 11, as set out in the Convention, reads as follows:
“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;
(b) the employee is:
(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or
(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”
43. To date, twenty-eight states have signed the Convention, including the United Kingdom, and twenty-one have ratified it, not including the United Kingdom. It will not come into force until it has been ratified by thirty states.
(c) The Vienna Convention on Diplomatic Relations 1961
44. Article 1 of the Convention provides the following definitions:
“For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
...
(b) The “members of the mission” are the head of the mission and the members of the staff of the mission;
(c) The “members of the staff of the mission” are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;
(d) The “members of the diplomatic staff” are the members of the staff of the mission having diplomatic rank;
(e) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission;
(f) The “members of the administrative and technical staff” are the members of the staff of the mission employed in the administrative and technical service of the mission;
(g) The “members of the service staff” are the members of the staff of the mission in the domestic service of the mission;
...
(i) The “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.”
45. Article 22 of the Vienna Convention provides that:
“1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”
The Council of Europe46. In so far as relevant, the European Convention on State Immunity, which entered into force on 11 June 1976 (on 4 October 1979 in the United Kingdom), provides as follows:
Article 5
“1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.
2. Paragraph 1 shall not apply where:
(a) the individual is a national of the employing State at the time when the proceedings are brought;
(b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or
(c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter.
3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2.a and b of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.”
Article 7
“1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it has on the territory of the State of the forum an office, agency or other establishment through which it engages, in the same manner as a private person, in an industrial, commercial or financial activity, and the proceedings relate to that activity of the office, agency or establishment.”
Article 32
“Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”
47. In its comments on Article 5, the Explanatory Report indicates that
“This article concerns contracts of employment. A distinction has been drawn between contracts of employment and other contracts (Article 4) because in certain circumstances it may be justifiable to accord immunity to a defendant State under a contract of employment particularly when the employee is a national of the employing State (see paragraph 2, subparagraph (a)). The same is true when the employee is a national neither of the State for whom be works, nor of the State where he works, and where the contract of employment was not concluded on the territory of the latter State namely where the employee is a foreign worker who has not been locally recruited (see paragraph 2, sub-paragraph (b)). In both cases the links between the employee and the employing State (in whose courts the employee may always bring proceedings), are generally closer than those between the employee and the State of the forum.”
European Union law and practiceThe Charter of Fundamental Rights of the European Union48. Article 47 of the Charter (Right to an effective remedy and to a fair trial) provides:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”
Ahmed Mahamdia v. People’s Democratic Republic of Algeria (Case C‑154/11 ECLI:EU:C:2012:491)49. Mr Mahamdia, who had both Algerian and German nationality, was employed as a driver in the Algerian embassy in Berlin. His contract contained a clause conferring exclusive jurisdiction, if there was a dispute, on the Algerian courts. He brought proceedings against Algeria in the Berlin Labour Court for unpaid overtime and dismissal. Algeria contended that the German courts had no jurisdiction, relying on both state immunity and the exclusive jurisdiction clause. The Higher Labour Court referred two questions to the CJEU for a preliminary ruling. One of the questions asked whether the embassy of a non-member state, which was situated in a member state, was a “branch, agency or establishment” for the purposes of Article 18(2) of the Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels Regulation”). In considering the first question of customary international law on state immunity, the CJEU held that:
“it must be observed that under the generally accepted principles of international law concerning immunity from jurisdiction a State cannot be sued before the court of another State in a dispute such as that in the main proceedings. Such immunity of States from jurisdiction is enshrined in international law and is based on the principle par in parem non habet imperium, as a State cannot be subjected to the jurisdiction of another State.
However, as the Advocate General observes in points 17 to 23 of his Opinion, in the present state of international law, that immunity is not absolute, but is generally recognised where the dispute concerns sovereign acts performed iure imperii. It may be excluded, by contrast, if the legal proceedings relate to acts performed iure gestionis which do not fall within the exercise of public powers.”
COMPLAINTS
50. The applicant complained that the State Immunity Act 1978 disproportionately interfered with his right of access to court in breach of Article 6 of the Convention, read alone and together with Articles 13 and 14.
THE LAW
51. Invoking Article 6 § 1 of the Convention, the applicant submitted that sections 4(2)(a), 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (“the 1978 Act” – see paragraph 24 above) disproportionately interfered with his right of access to court because they did not reflect generally recognised rules of public international law on State immunity. He contended that the restrictive doctrine of State immunity reflected customary international law in this regard. Alternatively, if Article 11(2)(e) of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 (“the 2004 UN Convention” – see paragraph 42 above) reflected customary international law, he contended that the grant of immunity to France had still disproportionately interfered with his right of access to Court because he was permanently resident in the United Kingdom when proceedings were instituted before the Employment Tribunal.
52. In addition, he submitted that sections 4(2)(a) and 4(2)(b) of the 1978 Act, insofar as they related to his nationality without qualification, violated his rights under Article 6 § 1 of the Convention read together with Article 14. Finally, invoking Article 13 of the Convention, he contended that he was denied an effective remedy as the only remedy available to the Supreme Court was a declaration of incompatibility, which did not affect the operation or validity of the 1978 Act.
53. The provisions invoked by the applicant provide, insofar as relevant, as follows:
Article 6
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Observations by the parties54. The Government accepted that an appeal by the applicant against the 2018 judgment (see paragraph 12 above) was not a remedy he was required to exhaust. France was entitled to immunity in accordance with sections 4(2)(a), 4(2)(b) and 16(1)(a) of the 1978 Act and the English courts were required to apply those provisions in respect of his domestic law claims, notwithstanding the declaration of incompatibility affirmed by the Supreme Court in Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v. Janah [2017] UKSC 62 (see paragraphs 28-39 above). However, insofar as the applicant sought to assert that the 2019 judgment (see paragraph 13-18 above) constituted a further violation of his Article 6 rights, the Government argued that he had not exhausted domestic remedies as he failed to plead, or adduce evidence, that he was permanently resident in the United Kingdom at the time the proceedings commenced; and that he did not appeal against the finding that his employment had been sovereign in nature. A successful challenge would have allowed the applicant’s EU law claim to proceed.
55. The applicant clarified that his complaints were based on the 2018 judgment only.
The Court’s assessment56. As the Government have accepted that an appeal by the applicant against the 2018 judgment would not have provided him with an effective remedy for his Convention complaints, and the 2019 judgment is not the subject of those complaints, the Court accepts that he has exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention. Nonetheless, for the reasons set out below, the Court does not consider that the applicant can claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violations.
57. Pursuant to Article 34 of the Convention, in order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008, and Micallef v. Malta [GC], no. 17056/06, § 44, ECHR 2009). According to the Court’s case-law, the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151, and N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 85, 13 February 2020).
58. In the present case the Employment Tribunal dismissed the applicant’s claims of unfair dismissal, automatic unfair dismissal and breach of contract on the basis that the respondent had not submitted to the jurisdiction of the Tribunal; the respondent had defended all claims on the basis of sections 4(2) and 16 of the 1978 Act because the applicant was a national of the respondent State (see section 4(2)(a) of the 1978 Act); and the respondent State did not concede that the Tribunal had jurisdiction under section 4(2)(b) of the 1978 Act (see paragraph 10 above). A limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, 10 May 2001; and Fogarty v. the United Kingdom [GC], no. 37112/97, § 33, 21 November 2001). When it comes to the operation of State immunity in employment disputes, the Court has repeatedly held that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1 of the Convention (see Cudak v. Lithuania [GC], no. 15869/02, §§ 56-57, ECHR 2010).
59. The Court has suggested that Article 11 of the Draft Articles (see paragraph 40 above), as enshrined in the 2004 UN Convention (see paragraph 42 above), applies under customary international law, even if the State in question has not ratified that convention (see paragraph 43 above), provided it has not opposed it either (see, for example, Cudak, cited above, § 67; Wallishauser v. Austria, no. 156/04, § 66, 17 July 2012; Oleynikov v. Russia, no. 36703/04, § 66, 14 March 2013; Radunović and Others v. Montenegro, nos. 45197/13 and 2 others, § 73, 25 October 2016; and Naku v. Lithuania and Sweden, no. 26126/07, § 89, 8 November 2016). The Court has acknowledged that Article 11(2)(d) of the Draft Articles does not fully correspond to Article 11(2)(e) of the 2004 Convention; insofar as relevant for the case at hand, Article 11(2)(d) of the Draft Articles allows a State to invoke immunity from jurisdiction where the claimant is one of its nationals (see paragraph 40 above), while Article 11(2)(e) of the 2004 UN Convention allows a state to invoke immunity where the claimant is one of its nationals when the proceeding was instituted, unless this person has permanent residence in the State of the forum (see paragraph 42 above; see also Ndayegamiye-Mporamazina v. Switzerland, no. 16874/12, §§ 62-63, 5 February 2019). However, to date, this difference has not been materially relevant to the outcome of any of the cases considered by the Court.
60. In Benkharbouche and Janah the Supreme Court did not consider that either Article 11 of the Draft Articles or Article 11 of the 2004 UN Convention was – at least in its entirety – declaratory of customary international law (see paragraphs 28-39 above). Rather, it took the view that under customary international law the restrictive doctrine of State immunity applied to contracts of employment: that is, that State immunity was recognised only in respect of acts done by a State in the exercise of sovereign authority (jure imperii), as opposed to acts of a private law nature (jure gestionis). Nonetheless, although it did not have to decide the issue, as the applicants in that case did not complain about the operation of section 4(2)(a) of the 1978 Act, it noted that there was a substantial body of international opinion to the effect that immunity should extend to a State’s contracts with its own nationals irrespective of their status or functions even if the work fell to be performed in the forum State (see paragraphs 36 and 37 above).
61. There is therefore a question mark in the present case concerning the exact content of the relevant rules of customary international law. However, it is not necessary for the Court to resolve this matter since, regardless of which approach were to be followed, the applicant has not furnished prima facie evidence demonstrating on the facts of his case that his employer was not entitled to immunity pursuant to a generally recognised rule of customary international law. Thus, even if the impugned provisions of the 1978 Act were incompatible with Article 6 and/or 14 of the Convention, the applicant has not shown that he himself was affected directly by that incompatibility.
62. In this regard, while the applicant’s complaint is only concerned with the findings of the Employment Tribunal in its 2018 judgment (see paragraph 12 above), the Court cannot ignore its findings in the 2019 judgment (see paragraphs 13-18 above). Those findings were made following a hearing at which both the applicant and his former employer were represented. Moreover, they go to the very heart of the issues which the applicant now asks this Court to address: namely, whether sections 4 and 16 of the 1978 Act were incompatible with customary international law (and therefore with Articles 6 and 14 of the Convention), and whether, on the facts of the case at hand, the applicant’s employer had been entitled to immunity pursuant to a generally recognised rule of customary international law. More particularly, the Tribunal considered whether the applicant was permanently resident in the United Kingdom when the proceedings were instituted, and whether he was performing State functions in his role as a security guard. The Court notes that the applicant did not challenge the Tribunal´s findings before the Employment Appeal Tribunal (see paragraph 22 above).
63. Before the Tribunal the applicant submitted a written statement touching on the question of his permanent residence which was only disclosed to the respondent moments before the hearing. As he himself did not attend to give evidence, and did not provide any justification for remaining in France, his representatives withdrew the statement and as a consequence the Tribunal could not find that he was permanently resident in the United Kingdom (see paragraph 17 above). Before the Court the applicant has submitted a witness statement dated 10 December 2018 in which he claims to have been permanently resident in the United Kingdom when the domestic proceedings were instituted (see paragraph 7 above). However, no documentation has been submitted in order to substantiate that claim. It is true that as an EU national the applicant did not at the relevant time need a residence permit in order to reside in the United Kingdom. Nonetheless, in his witness statement he refers to employment that he apparently held and homes he claims to have rented following the termination of his employment at the French embassy. Even if he did not need a residence permit to reside in the United Kingdom, his residence would have generated a paper trail though which he could have substantiated his claim; however, notwithstanding the findings of the Employment Tribunal in its 2019 judgment (see paragraphs 13-18 above), he has not sought to do so in his application to the Court.
64. Similarly, having heard evidence from both the applicant and his former employer, the Employment Tribunal found that the applicant had been performing State functions and thus a sovereign act in the guarding of the mission premises (see paragraph 19 above). The Tribunal therefore distinguished between the applicants in Benkharbouche and Janah, who were engaged in duties such as housekeeping, cooking and cleaning, and the applicant, who in providing security and protection to the inviolable and unique character of mission premises was not carrying out purely a domestic function. As the Court has already noted, he did not seek to challenge this finding of the Employment Tribunal, even though he had a right of appeal to the Employment Appeal Tribunal (see paragraph 22 above). In these circumstances, the Court sees no basis upon which it could come to a different conclusion.
65. As the applicant has not provided the Court with prima facie evidence demonstrating on the facts of his case that he was affected directly by the alleged incompatibility of the impugned provisions of 1978 Act with Articles 6 and/or 14 of the Convention, he cannot claim to be a “victim” of the alleged violations within the meaning of Article 34 of the Convention. His complaint under these Articles must therefore be rejected as being incompatible ratione personae with the provisions of the Convention.
66. As the applicant has no “arguable claim” of a violation of his rights under Article 6 § 1, read alone or together with Article 14 of the Convention, his complaint under Article 13 of the Convention is incompatible ratione materiae with the provisions of the Convention (see, amongst many other authorities, Walter v. Italy (dec.), no. 18059/06, 11 July 2006) and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 April 2022.
Ilse Freiwirth Yonko Grozev
Deputy Registrar President