Diplomatic Immunity Squared: Al-Juffali v. Estrada, [2016] EWCA Civ 176

There are several recent English decisions on an interesting question: to what extent can courts adjudicating private law disputes look behind official credentials and determine whether diplomatic immunity applies? The basic issues are outlined well by Philippa Webb in this post on EJIL: Talk! In both cases, as Dr. Webb explains, several facts suggest that the diplomatic appointments were designed to defeat civil claims. As she outlines, contrasting approaches were taken in two first-instance decisions:

On 8 February 2016, Mr Justice Hayden in Estrada v Al-Juffali [2016] EWHC 213 (Fam) adopted (para 36) a functional test: has the person “in any real sense” taken up his appointment and discharged any responsibilities in connection with it? One week later, Mr Justice Blake in Al Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB) rejected the functional test (para 73) and took (paras 37(i), 74-5) a formal approach: A person should be treated as a diplomatic agent if there is evidence that he has been appointed as such and that appointment has been communicated to and accepted by the FCO.

The Court of Appeal has since weighed in, in support of the formal approach: Al-Juffali v. Estrada, [2016] EWCA Civ 176. In matters of diplomatic credentials, the courts have no oversight role. Rather, if there are abuses, they are to be remedied by the executive, following the procedures of international law. As Lord Dyson M.R. explained, “it is not envisaged that the correct response to such a situation is for the domestic courts to look behind the status of the representative. The decision whether or not to waive the immunity is a matter which is solely within the executive discretion of the sending State or the courts of the sending State” (at para. 26).

Similarly, Black J., in a passage from his judgment in Al Attiya that Lord Dyson M.R. approved, said: “Leaving the control mechanism for termination of an appointment in the hands of the FCO, if it considers appropriate, avoids the risk of inconsistency and leaves the exercise of the prerogative untrammelled by a rival judicial enquiry. The prerogative power of conducting foreign relations is exercised by the executive through the FCO and not by the courts…” (quoted at para. 33). Both he and Lord Dyson M.R. also invoked the principle that a nation should speak with one voice in matters of foreign relations.

This immunization from judicial oversight of diplomatic immunity matters seems rather strong to me. If an individual with standing were to challenge the lawfulness of a certificate issued by the Foreign and Commonwealth Office, would the courthouse door be barred shut? In all circumstances, no matter how egregious or outrageous (and assuming that the FCO has information that diplomatic credentials are being misused in some way)? I readily concede that considerations of justiciability might enter the equation and that any judicial review would be highly deferential. There is, moreover, venerable authority, albeit in the context of an action rather than an application for judicial review, in support of the formal approach: Engelke v Musmann [1928] AC 433. But I doubt that a court in 2016 should accept a total exclusion of judicial oversight when the legality of official action is at issue. Judges may contribute nowadays to the voice of the state in international affairs.

If this last paragraph is more-or-less correct, then whether a diplomatic credential is a sham should in principle (the level of abstraction at which Lord Dyson M.R.’s discussion was pitched) also be open to question in a civil action. This is an impeccable private-law matter; that a court might need to opine on the legality of official action is not problematic (see e.g. Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee, [1992] AC 624). The alternative possibility — that successful judicial review proceedings would be a condition precedent to a private law claim against a sham diplomat — is unattractive. Such a claim would doubtless be difficult to establish in practice, but the courthouse door should at least be left ajar.

On the facts, as Joshua Rozenberg recounts, diplomatic immunity did not apply in Al-Juffali because it was inapplicable to the circumstances.

This content has been updated on April 4, 2016 at 15:00.