Joined cases of Benkharbouche v Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs and others intervening) and Janah v. Libya [2015] EWCA Civ 33 (Court of Appeal), [2015] 3 WLR 301, [2015] 2 CMLR 20, [2015] HRLR 3.

These two cases that were joined on appeal related to employment claims brought by domestic staff employed by the Libyan and Sudanese Embassies in London.

The Court of Appeal in this appeal from the decision by the Employment Appeal Tribunal had to decide whether two provisions of the State Immunity Act (“SIA”) – provisions that excluded claims brought by staff members employed by foreign Embassies (s. 16(1)(a)) and by employment claimants not habitually resident in the UK (s. 4(2)(b)) – were compatible with the right of access to a court as provided by Art. 6 of the European Court of Human Rights (“ECHR”) and Art. 47 of the EU Charter of Fundamental Rights (“EUCFR”).

The CA in a landmark decision held that these two SIA provisions infringed the ECHR and EUCFR and that the provisions could not be read down and given effect in a way that was otherwise compatible with the ECHR pursuant to the interpretative obligation imposed by s. 3(1) of the Human Rights Act 1998. As such, the Court of Appeal made a “declaration of incompatibility” in relation to ss. 4(2)(b) and 16(1)(a) of the SIA and disapplied these provisions to those parts of the claims in the case which fell within the scope of EU law thereby allowing the claims to proceed against Libya and Sudan. The CA granted Libya and the Foreign Secretary permission to appeal to the Supreme Court.

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