A migrant domestic worker alleged she was trafficked and exploited by a Saudi diplomat in the UK, working in conditions of modern slavery. The Supreme Court held (3-2) that exploiting a domestic worker for profit in circumstances of modern slavery constitutes a ‘commercial activity’ under the Vienna Convention, removing diplomatic immunity from civil claims.
Background
Ms Josephine Wong, a Philippine national, was employed as a domestic worker in the household of Mr Khalid Basfar, a member of the diplomatic staff of the Kingdom of Saudi Arabia’s mission in the United Kingdom. Ms Wong alleged that she was brought to the UK in August 2016 to work for Mr Basfar and was subsequently confined to his house, made to work approximately 16.5 hours per day with no days off, paid nothing or a fraction of her contractual entitlement, held virtually incommunicado, verbally abused, required to wear a door-bell at all times, and fed only leftover food. She endured these conditions until she managed to escape on 24 May 2018.
Ms Wong brought a claim in the employment tribunal for wages and breaches of employment rights. Mr Basfar sought to have the claim struck out on the ground of diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961, as enacted into UK law by the Diplomatic Privileges Act 1964. Under Article 31(1) of the Convention, diplomatic agents enjoy general immunity from civil jurisdiction, subject to limited exceptions including, under Article 31(1)(c), claims relating to “any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”
The employment tribunal refused to strike out the claim, holding that the alleged facts fell within the commercial activity exception. The Employment Appeal Tribunal reversed that decision. Ms Wong appealed directly to the Supreme Court via a leapfrog certificate.
The Issue(s)
The central question was whether the exploitation of a domestic worker in circumstances of modern slavery constitutes the exercise of a “commercial activity” by a diplomatic agent within the meaning of Article 31(1)(c) of the Vienna Convention, thereby removing diplomatic immunity from Ms Wong’s civil claim.
A related question was the relevance of developments in international law regarding human trafficking, forced labour and servitude to the interpretation of Article 31(1)(c).
The Parties’ Key Arguments
Ms Wong’s Case
Ms Wong argued that human trafficking is a commercial activity; that her claim related to human trafficking by Mr Basfar; and that consequently the claim fell within the Article 31(1)(c) exception. She further argued, in supplementary submissions invited by the Court, that even if the facts did not strictly meet the definition of trafficking, the exploitation constituted forced labour and/or domestic servitude amounting to commercial activity.
Mr Basfar’s Case
Mr Basfar contended, following Lord Sumption’s minority reasoning in Al-Malki v Reyes [2017] UKSC 61, that employing a domestic servant at a diplomat’s private residence does not constitute a commercial activity, and that this conclusion is unaffected by whether the servant is a victim of trafficking. He further argued that the facts pleaded did not meet the definition of trafficking in the Palermo Protocol and that the employment tribunal claim did not “relate to” trafficking.
The Court’s Reasoning
The Majority (Lord Briggs and Lord Leggatt, with Lord Stephens agreeing)
The majority began by applying the principles of treaty interpretation set out in the Vienna Convention on the Law of Treaties 1969, requiring interpretation in good faith in accordance with the ordinary meaning of the terms in their context and in the light of the treaty’s object and purpose.
They agreed that ordinary employment of a domestic worker does not constitute a “commercial activity” for the purposes of Article 31(1)(c), accepting the reasoning in Tabion v Mufti that activities incidental to the daily life of a diplomat in the receiving state fall within the rationale for immunity. The majority reasoned that the personal protection afforded to diplomatic agents justifies immunity for ordinary contracts incidental to daily life.
However, the majority held there is a material and qualitative difference between ordinary employment and the exploitation alleged:
We cannot accept that exploiting a domestic worker by compelling her to work in circumstances of modern slavery is comparable to an ordinary employment relationship of a kind that is incidental to the daily life of a diplomat (and his family) in the receiving state. There is a material and qualitative difference between these activities.
The majority identified the key distinction as that between freedom and captivity:
While true, it misses the critical distinction – which is between freedom and captivity.
They analysed in detail how Mr Basfar’s alleged conduct — total physical and social isolation, withholding of pay, psychological abuse, and extreme working conditions — placed Ms Wong in a position of domestic servitude, and how this was exploited for personal financial profit. The majority rejected the argument that because no money changed hands there was no profit:
Any realistic form of economic measurement, not to say system of taxation, takes account of benefits in kind which have monetary value.
They drew on ILO data estimating that nearly US$8 billion in profits are extracted annually from forced domestic labour worldwide, concluding that Mr Basfar made a substantial financial gain from Ms Wong’s exploitation in money’s worth, which constituted a commercial activity practised for personal profit.
The majority further held that it would be offensive to suggest that compelling a person to work in conditions of modern slavery was incidental to the daily life of a diplomat:
It would be not merely wrong but offensive to suggest that conduct of the kind disclosed by the assumed facts of this case is incidental to daily life, let alone the daily life of an accredited diplomat.
On the question of taxonomy — whether the facts constituted trafficking, forced labour or servitude — the majority held it unnecessary to resolve the precise classification, citing Gleeson CJ in Queen v Tang:
Those who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy.
The majority also rejected the argument that the potential need for fact-finding hearings should preclude the exception’s application, noting that the parties to the Convention must be taken to have contemplated and accepted such inquiries when establishing the exception. They similarly dismissed the argument in terrorem regarding potential retaliatory measures against British diplomats abroad.
The Dissent (Lord Hamblen and Lady Rose)
The dissenting judges agreed that normal employment of a domestic worker does not amount to commercial activity, but disagreed that the conditions of exploitation could convert such employment into a commercial activity. They considered that developments in international law regarding trafficking had not expanded the meaning of “commercial activity” in Article 31(1)(c), relying on state practice (particularly extensive US jurisprudence consistently holding that even trafficked domestic employment falls outside the exception), academic commentary, and the approach taken in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia. They expressed concern about the uncertainty of the boundary the majority drew, the intrusiveness of the factual inquiry required, and the risks to UK diplomats abroad through reciprocal measures.
Practical Significance
This decision establishes that exploitation of a domestic worker in circumstances of modern slavery — whether characterised as trafficking, forced labour, or domestic servitude — constitutes a “commercial activity” within Article 31(1)(c) of the Vienna Convention, thereby removing the shield of diplomatic immunity from civil claims relating to such exploitation. The decision draws a clear line between ordinary domestic employment (which remains protected by immunity) and the exploitation of forced labour for profit (which does not).
The ruling has significant implications for the protection of migrant domestic workers employed by diplomats, who are particularly vulnerable to exploitation. It ensures that victims of modern slavery in diplomatic households can pursue civil remedies in the courts of the receiving state, notwithstanding the diplomatic status of their employer. However, the majority acknowledged that practical enforcement of any judgment may remain difficult while the diplomat is in post or after departure from the country.
The decision also affirms that the fact an activity is illegal under international law does not itself make it “commercial” — but that exploiting forced labour for financial gain falls within the natural meaning of commercial activity when properly distinguished from activities incidental to daily diplomatic life.
Verdict: The Supreme Court allowed Ms Wong’s appeal by a majority of 3 to 2 (Lord Briggs, Lord Leggatt and Lord Stephens; Lord Hamblen and Lady Rose dissenting). The judgment of the employment tribunal refusing to strike out the claim was reinstated. The Court held that, on the assumed facts, Ms Wong’s claim fell within the commercial activity exception to diplomatic immunity under Article 31(1)(c) of the Vienna Convention on Diplomatic Relations, and that Mr Basfar did not have immunity from the civil jurisdiction of the courts of the United Kingdom, subject to the allegations being proved at a hearing.
Source: Basfar v Wong [2022] UKSC 20
