Basfar v Wong: Diplomatic Immunity and Modern Slavery

Facts

The case concerned a Saudi Arabian diplomat accused of subjecting a domestic worker to conditions amounting to modern slavery. The appellant alleged 16.5-hour workdays, confinement, no pay, no breaks and eighteen months of exploitation. She brought claims including failure to pay the national minimum wage, unauthorised deductions and breaches of the Working Time Regulations 1998.

The respondent relied on diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961, incorporated into UK law by s.2(1) of the Diplomatic Privileges Act 1964. Article 31(1)(c) removes immunity where a diplomat engages in commercial activity outside official functions.

The Employment Tribunal found for the appellant. The Employment Appeal Tribunal allowed the respondent’s appeal, relying on Al‑Malki v Reyes. The appellant then leapfrogged to the Supreme Court under s.37ZA of the Employment Tribunals Act 1996. The question was whether the respondent’s conduct amounted to commercial activity.

Issues

The appellant argued:

• Trafficking is a commercial activity.
• The respondent trafficked the appellant.
• Therefore, the respondent engaged in commercial activity beyond diplomatic functions, removing immunity under Article 31(1)(c).

The respondent relied on Reyes, which held that employing a domestic worker is not commercial activity. The Supreme Court noted that trafficking was not essential to the appellant’s claims and risked obscuring the core issue.

Majority Judgment: Lord Briggs, Lord Leggatt and Lord Stephens

The majority accepted that ordinary domestic employment is not commercial activity under Reyes. However, they distinguished this case on the facts. They held that systematic exploitation, coercion, confinement and financial abuse transformed the arrangement into “a paradigm example of domestic servitude”.

The respondent’s financial exploitation meant he derived personal profit from the appellant’s labour. This constituted commercial activity under Article 31(1)(c). Immunity was therefore waived, and the case was returned to the Employment Tribunal for determination on the facts.

Minority Judgment: Lord Hamblen and Lady Rose

The minority agreed that domestic service contracts are not commercial activity. However, they rejected the idea that financial benefit obtained through exploitation converts a non‑commercial activity into a commercial one.

They argued that Article 31(1)(c) applies only where the activity is set up for commercial gain, not where profit arises incidentally through abuse. They noted that international law on modern slavery does not classify forced labour as commercial activity. They also warned that the majority’s approach undermines diplomatic immunity and risks retaliatory measures against UK diplomats.

Analysis

Two issues divided the court:

1. Commercial activity

The minority argued that an activity retains its legal form even if its substance changes. Exploitation cannot convert domestic employment into commercial activity. The majority disagreed, holding that the substance of the conduct was commercial because it involved financial exploitation.

2. Interpretation of the Convention

The minority insisted that “commercial activity” must be interpreted as understood in 1961. The majority adopted an evolutionary approach, permitted under Articles 31 to 33 of the Convention. They argued that modern slavery is now better understood, and exploitation can legitimately fall within commercial activity.

The minority relied on Jones v Saudi Arabia, which warns against national courts unilaterally developing international law. The majority responded that they were extending existing principles, not creating new ones, and that their definition was grounded in clear indicators of modern slavery.

Conclusion

The majority judgment is a significant development for victims of modern slavery, but it leaves unresolved questions:

• How can exploitation be proved without disclosing sensitive information about a diplomat?
• What risks exist for UK diplomats abroad?
• Whether reducing immunity offers any meaningful remedy.

Article 31(3) of the Convention prevents enforcement measures that infringe the inviolability of a diplomat’s person or residence. Once a diplomat leaves the UK, enforcing a judgment may be impossible. This means the decision, although symbolically powerful, may offer limited practical protection. The majority also dismissed concerns about retaliation, but informal consequences remain possible.