[2009] UKAIT 7
- Case title: SS and Others (Sovereign immunity claim, Certificate conclusive)
- Appellant name: SS and Others
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Malaysia
- Judges: Mr G Warr, Mr P J Brewer
- Keywords Sovereign immunity claim, Certificate conclusive
The decision
SS and Others (Sovereign immunity claim – Certificate conclusive) Malaysia [2009] UKAIT 00007
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Heard at Taylor House
On 27 January 2009
Before
SENIOR IMMIGRATION JUDGE WARR
IMMIGRATION JUDGE BREWER
Between
Appellants
and
ENTRY CLEARANCE OFFICER – KUALA LUMPUR
Respondent
Representation:
For the Appellants: I A Macdonald QC, instructed by Grange & Castle, Solicitors
For the Respondent: D Manknell of Counsel, instructed by the Treasury Solicitors
Where an appellant claims State immunity a certificate issued by the Secretary of State under s.21 of the State Immunity Act is conclusive and may not be questioned by the Tribunal.
DETERMINATION AND REASONS
1. The appellants are citizens of Malaysia. They seek to enter the United Kingdom as part of the entourage of the Sultan of Pahang. The first three named appellants are police/security officers and the remaining appellants are household staff. The individual circumstances of the appellants do not matter for reasons that will appear. Their applications for entry clearances were refused under paragraphs 159A and 320(11) and (12) of HC 395. Taking the circumstances of the first named appellant as an example, he was born on 19 September 1959 and applied for an entry clearance on 14 February 2008 which was refused on 15 February 2008. In refusing the application the Entry Clearance Officer noted that the appellant had previously applied for an entry clearance on 24 April 2007 as a domestic worker. When he was called to attend an interview in connection with this application he withdrew it, obtaining a new passport on 4 May 2007 on which he travelled to the United Kingdom. He was admitted to the United Kingdom as a visitor on 5 May 2007 and 23 July 2007 although he had stated that he had in fact been accompanying his employer, the Sultan, on those occasions. The appellant’s previous passport indicated he had previously entered the United Kingdom as a domestic worker and the Entry Clearance Officer drew the inference that there had been a calculated attempt to deceive the Immigration Officer in the United Kingdom as to his intentions and immigration history. The respondent:
“was not satisfied on the balance of probabilities that you have not worked when you previously entered the UK as a visitor and that you have not employed deception to gain entry to the UK. Paragraph 320(11) and (12). These are normally grounds on which entry clearance to the UK should be refused. I have considered your application carefully taking into account the statement from your employer but I am not satisfied that this is an adequate basis to satisfy these provisions of the Immigration Rules and I am therefore not prepared to exercise discretion in your favour.”
2. The case was reviewed on 28 July 2008 and the decision was maintained. In paragraph 6 of the explanatory statement it was stated as follows:
“The appellant’s representative has suggested that he is serving staff of a ‘sovereign or head of state’, HRH Sultan of Pahang. However HRH Sultan of Pahang is one of nine sultans of states comprising Malaysia. There is a king or Agong who is nominated from one of these sultanates and I would therefore consider that this immunity would apply only to the head of state of Malaysia, the Agong, and not to the other state sultans.”
3. The Entry Clearance Officer noted that the appellant had applied as a domestic worker and had been assessed as such.
4. In the grounds of appeal it was contended that the appellant was a member of the serving staff of a sovereign or head of state (the Sultan of Pahang) and was accordingly immune from immigration control and the respondent had been wrong to conclude that the appellant was coming to work in the United Kingdom within the meaning of the Immigration Rules. An amended skeleton argument was served on 14 August 2008 stating that the main ground of appeal concerned sovereign immunity and each of the appellants were entitled to immunity from the immigration laws under section 8(3) of the Immigration Act 1971 read with section 20 of the State Immunity Act 1978. The submissions of the six appellants were:
“premised on the fact that the Sultan is entitled to sovereign immunity. This needs to be evidenced by a letter or certificate from the Secretary of State for the Foreign and Commonwealth Office (FCO) and the submissions were premised on the fact that adequate proof of exemption is to hand.”
5. On 10 November 2008 the Head of Protocol at the Foreign and Commonwealth Office certified that
“Pahang is a constituent territory of Malaysia which is a federal state;
Haji Ahmad Shah, Al-Musta’in Billah ibni Almarhum Sultan Abu Bakar Ri’Ayatuddin Al-Mu’Adzam Shah is the Sultan of the territory of Pahang and is not the Head of State of Malaysia;
His Majesty Al-Wathiqu Billah Tuanku Mizan Zainal Abidin Ibni Al-Marhum Sultan Mahmud Al-Muktafi Billah Shah is the Head of State of Malaysia.”
6. By virtue of Section 21 of the State Immunity Act 1978:
“A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question –
(a) whether any country is a State for the purposes of Part 1 of this act, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head or government of a State…”
7. Mr Macdonald in his submissions relied on his re-amended skeleton argument and confirmed that the concern was not with the individual appellants and the issues were almost entirely legal ones. When the Sultan visited the United Kingdom he required security and domestic staff. The starting point was the Secretary of State’s certificate. The certificate was right “as far as it goes and only so far as it goes it was conclusive”.
8. The Sultan of Pahang was not the Head of the State of Malaysia. The position in Malaysia was that the duties of Head of State circulated – he had once been Head of State but was unlikely, in view of his age, to be Head of State again. The real issue was whether the Sultan was the sovereign Head of the State of Pahang. He clearly was under Malaysian law the Head of State entitled to immunity and Mr Macdonald relied on the opinion of the Attorney General of Malaysia. Sovereign immunity could extend to the constituent states of a country with a federal constitution. Reference was made to the Immigration Directorate’s Instructions referred to in paragraphs 17 to 20 of the skeleton argument as re-amended.
9. Mr Macdonald referred to Mellenger v New Brunswick Development Corporation [1971] 2 All ER 593 where the Court of Appeal held that the province of New Brunswick was a sovereign state in its own right and entitled to claim sovereign immunity. The situation in Malaysia was very similar although it was acknowledged that some of the authorities relied on by the Attorney General in his opinion predated the Federation of Malaysia and the 1978 Act but were nevertheless informative.
10. Mr Manknell submitted that the respondent did not object to the matter being dealt with under section 84(e) of the 2002 Act on the basis that it was argued that the decision being challenged was not in accordance with the law. The certificate, however, was unchallengeable. It was accepted by the appellants that the certificate was conclusive of the matters contained in the certificate. The Secretary of State was not in a position to dispute the evidence that the Sultan was entitled to immunity under Malaysian domestic law. Reliance was placed by the appellants on section 20 of the State Immunity Act and it was accepted that Pahang constituted a state within a federal territory.
11. It was submitted that the appellants were either entitled to immunity or they were not. He referred to section 14(1)(a) of the State Immunity Act which reads as follows:
“(1) The immunities and privileges conferred by this Part of the Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to –
(a) the sovereign or other head of that State in his public capacity;…”
12. Counsel submitted that it was clear that in the absence of an Order in Council no part of Part 1 of the State Immunity Act apart from section 12 would apply to the constituent territories of a federal state and in support of that submission he relied on section 14(5) which reads as follows:
“Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State.”
13. Counsel submitted that there were only two Orders in Council in effect and they applied to the constituent territories of Austria and Germany respectively. Section 12 related to the service of process and judgments in default of appearance.
14. The certificate was conclusive and the Sultan was not a sovereign or head of State and there was no Order in Council providing otherwise and that was the end of the matter. Section 20 provided:
“(1) Subject to the provisions of this Section and to any necessary modifications, the Diplomatic Privileges Act 1974 shall apply to –
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants….
(5) This Section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part 1 of this Act and it is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity.”
15. Counsel submitted that the Sultan of Pahang could not be a sovereign or other head of State on which immunities were conferred by Part 1 because he was not head of State as confirmed by the Secretary of State’s certificate. Sovereign was a sub-category of heads of State. One could not be a sovereign without being a head of State.
16. Counsel submitted that the Diplomatic Privileges Act 1964 did not take matters any further since it had not been argued by the appellants that they were members of a diplomatic mission and reliance placed on the 1964 Act arose solely as a result of section 20(1) of the State Immunity Act 1978. The 1978 Act provided that the 1964 Act should apply to a sovereign or other head of State but for the purposes of the State Immunity Act the Sultan of Pahang is not a sovereign or other head of State and so the Diplomatic Privileges Act 1964 did not extend to him or his staff by virtue of the State Immunity Act. The Sultan of Pahang would have been head of State in Malaysia in the 1980s but the Diplomatic Privileges Act did not extend to former heads of State – Counsel referred to Article 39(2) of Schedule 1 to the Diplomatic Privileges Act.
17. With reference to the case law relied upon, it was submitted that the State Immunity Act 1978 significantly changed the common law Rules. They were irrelevant. The Bank of Commerce International (Overseas) Limited (in liquidation) v Price Waterhouse (a firm) [1997] 4 All ER 108 (“the Abu Dhabi case”) had been relied on heavily by the appellants but the crucial point was that the sovereign immunity accorded to the ruler of Abu Dhabi was not a result of his being a ruler of a constituent territory of the United Arab Emirates but because of his concurrent status as President of the United Arab Emirates. That distinction had been recognised in R (Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin) at paragraph 11 (Silber J). The correctness of the decision in Mellenger had been doubted.
18. The circumstances in this case were clear and straightforward and the Secretary of State’s certificate was conclusive.
19. In reply we first canvassed with Mr Macdonald whether the appellants could succeed under the Immigration Rules were we to be against him on the sovereign immunity point. It transpired that none of the appellants could make out a case under the Immigration Rules – the individual circumstances and the precise requirements of their services to the Sultan and other matters meant that they could not comply with paragraph 159A and no other obvious paragraphs of the Rules could be made applicable to them. Mr Macdonald was constrained to admit that he could not bring the appellants within the Rules and accordingly the only issue in the case was state immunity. If the appellants won on that they all won. If they lost on that they all lost.
20. In relation to the deception issue, it was agreed between the representatives that the burden lay on the Secretary of State. Mr Macdonald submitted that the Secretary of State had not discharged that burden.
21. On the state immunity issue, the certificate did not decide that Pahang was not a state. In determining whether a body was entitled to sovereign immunity one needed to look at the constitution of the state concerned. In Almieyeseigha the Court had considered the Nigerian constitutional provisions. The circumstances in Malaysia were totally different. Furthermore the Nigerian authorities had waived immunity.
22. Regard should be had to paragraph 32 of the Attorney General’s opinion where there was reference to Article 36 of the constitution which provided: “‘Sovereign’ means the Sultan and ruler of the state of Pahang and includes his successors”.
23. The Abu Dhabi case turned on its own facts. Merely because a case was recent, that did not overturn the doctrine of precedent and the case of Mellenger was still a binding authority. The Court of Appeal in Mellenger had referred to a statute of the Westminster Parliament and it decided that sovereign immunity extended to the constituent states of a country which had a federal constitution such as a Canadian province. The certificate ducked the issue. If the Secretary of State had said that Pahang was not a sovereign state that would be the end of the issue. In the absence of a certificate one had to go back to the basic principles. If we were against him on the certificate, that would be the end of the matter.
24. At the conclusion of the submissions we reserved our determination and we must express our thanks to Counsel on both sides for their helpful guidance through somewhat unfamiliar territory.
25. Counsel also helpfully narrowed the issues. The sole point on which the appellants rely is the issue of state immunity. If they win on that all the appeals are to be allowed and if they lose on that all the appeals are to be dismissed. No argument is put forward that they could otherwise succeed under the Immigration Rules.
26. On the issue of jurisdiction, attention was given to the possibility of applying for judicial review but it was felt appropriate to exercise a statutory appeal right as it might be said that the appellants had not exhausted their alternative remedies. We approach the issues, therefore, on the footing, agreed by both parties, that we have jurisdiction to investigate the issue of state immunity on the basis that if state immunity applied the decision taken by the respondent would not be in accordance with the law.
27. As we are not concerned with the Immigration Rules, it follows that it is not necessary in this determination to deal with the issue of deception. Had we had to decide the issue, we would readily have accepted that the appellants were acting under orders and we would have been slow to conclude that they had been ordered to do anything deceptive. There is in the papers a witness statement signed by the Equerry Officer employed by the Sultan who sets out the background circumstances to the applications. It is stated that the palace was confused when it was advised that some colleagues should apply for visas while some should not. The palace brought a number of passports to the Entry Clearance Officer to ascertain whether they needed visas “in the interests of transparency, and the palace’s desire to ensure that it complied with all the relevant immigration laws…”
28. The burden of proof in alleging deception rests on the respondent. The particular paragraphs relied on by the respondent do not make refusal mandatory but allow for the exercise of discretion. Had we found it necessary to decide the issue, we would have been extremely unlikely to find that anyone concerned in this case was party to contumelious conduct. Whatever the eventual outcome, we would hope that any suggestion of impropriety was expunged from the records of all those concerned.
29. We have the benefit of an opinion from the Office of the Malaysian Attorney General. The High Court in Almieyeseigha was somewhat dismissive of the opinions of the Attorneys General in that case – see paragraph 7 of the judgment of Silber J:
“The issue whether the claimant is entitled to state immunity is essentially a question of law for the courts of this country on which the views of either Attorney General is not of any value…”
30. However Mr Manknell states that the respondent is not in a position to dispute the opinion given insofar as it relates to Malaysian law and the position of the Sultan under Malaysian law. Under Article 2 of the Constitution of the Pahang “The sovereign is the fountainhead of justice and of all authority in the state and territory of Pahang and all its dependencies and, thereby, the head of all titles and dignities, honours and awards in the state and the government thereof”. The Sultan ascended to the throne on 7 May 1974. The Sultan was elected Yang Di-Pertuan Agong on 26 April 1979 and served his full five year term of office until 25 April 1984. He was eligible to be re-elected as the Yang Di-Pertuan Agong for as long as he remained the ruler and Sultan of Pahang. The Yang Di-Pertuan Agong is appointed from among the nine state rulers on a rotational basis of five years as provided by the Constitution.
31. There is no doubt that during the period when he was elected to be the Yang Di-Pertuan Agong the Sultan did enjoy state immunity as the sovereign head of the Federation of Malaysia. However that period has now passed although he is still entitled to be elected in due course to that office. Mr Manknell firmly rests his argument on the 1978 Act and the certificate issued thereunder. The background to the legislation is set out in the judgment of Laddie J in the Abu Dhabi case as follows at p.110:
“There are two statutes which are relevant to this application, the Diplomatic Privileges Act 1964 and the State Immunity Act 1978. The first is concerned to bestow immunity in respect of civil and criminal proceedings on diplomatic staff. This Act implements many of the provisions of the Vienna Convention on Diplomatic Relations and Optional Protocol concerning the Compulsory Settlement of Disputes signed in 1961. In particular, it brings into effect in our domestic law, the provisions of art 31 of that convention, which, so far as relevant to this application, reads as follows:
‘1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of … (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions …’
When the 1964 Act became part of our law, it did not affect the common law immunity of heads of state, but only the immunity of representatives of a state, such as ambassadors. The 1978 Act is concerned primarily with state immunity. Until the passing of that Act, state immunity was a matter of common law and the extent of that immunity was the subject of some difficult case law.”
32. Laddie J then considered the position of states and the head of a state and it is helpful to set out the following extract from the judgment:
“The 1978 Act includes two significant provisions relating to the sovereign or head of state, that is to say a sovereign or head of state of a state recognised by virtue of the issue of a suitable certificate. The first, s 20(1)(a), provides:
‘Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to – (a) a sovereign or other head of state…’
Thus, the head of state has all the immunities bestowed on diplomatic personnel such as ambassadors. Secondly, in some cases, it is possible to bring proceedings against the head of state as representing the state itself. Because that is so, s 14(1)(a) of the 1978 Act provides:
‘The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to – (a) the sovereign or other head of that State in his public capacity …’
This means that when a head of a recognised state is acting in his private capacity, he has the same immunities as say, the ambassador of that state under the 1964 Act. On the other hand, when acting in his public capacity, effectively as the embodiment of the state, he has all the immunities the state has under the 1978 Act. It would appear at first blush that the immunities are cumulative, thus the fact that he has immunities when acting in a public capacity, does not detract from the immunities derived from the 1964 Act by virtue of s 20(1) of the 1978 Act. (see in this regard s 16 of the 1978 Act.)
If in this case the defendants had been trying to bring third party proceedings against the head of a recognised state in his private capacity, the provisions of the 1964 Act would give him immunity from suit. In particular, the provisions of art 31(1)(c) of the convention only removes the immunity from suit where the diplomatic agent, or in his case head of state, is carrying on a professional or commercial activity in the receiving state, that means in England. There is no suggestion that Sheikh Zayed is carrying on or has carried on any relevant activity in England. Furthermore, as Mr Goldsmith accepted, to avoid immunity it would be necessary to show that the head of state carried on a continuous business activity here with a view to profit. That also was not asserted against Sheikh Zayed.
However, these are not the only statutory provisions relevant to this application. A recognised state may be a federation. The 1978 Act makes certain provisions for the constituent territories of such a federation. In particular, s 14(5) provides:
‘Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State.’
For example, an Order in Council might have the effect of treating the constituent territory as if it were itself a recognised state, so that the head of the constituent territory would also be treated as if he were head of a recognised state.
However, if there is no such order, s 14(6) applies and that provides:
‘Where the provisions of this Part of this Act do not apply to a constituent territory by virtue of any such Order subsections (2) and (3) above shall apply to it as if it were a separate entity.’
This refers back to s 14(2)(a) and (b) which are the only provisions of s 14 to which it is necessary to refer for the purpose of this application. Section 14(2) is in the following terms:
‘A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if – (a) the proceedings relate to anything done by it in the exercise of sovereign authority; and (b) the circumstances are such that a State (or, in the case of proceedings to which section 10 above applies, a State which is not a party to the Brussels Convention) would have been so immune.’
It is now possible to consider the effect of these provisions on the position of a constituent state which is not the subject of an order. When such a state does something, ‘in the exercise of sovereign authority’, it is given the benefit of the same immunities as the state of which it forms a constituent part. It is not in dispute that the ‘sovereign authority’ in s 14(2)(a) is a reference to the sovereign authority of the recognised state. In other words, when a constituent territory or other separate entity acts for and on behalf of the recognised state and effectively acts as if it was exercising the state’s sovereign authority, it obtains the immunity that the state would have obtained, had it acted on its own behalf.
Secondly, if it does not fall within the provisions of s 14(2)(a), the constituent territory or other separate entity has no immunity. It neither falls under s 14 nor does it obtain immunity under the 1964 Act. In particular, there is no equivalent provision to s 20(1)(a) extending to such a constituent territory any of the 1964 Act immunities. This is not surprising because the 1964 Act immunities are clearly concerned with giving immunities from suit to individuals rather than territories.
With that in mind, it is possible to turn to the particular facts of this case. Most of these facts I do not understand to be in dispute. (1) the United Arab Emirates is a state within the meaning of the 1978 Act, a certificate to that effect has been signed by the Secretary of State. (2) His Highness Sheikh Zayed is the head of that state. (3) Abu Dhabi is a constituent territory of the United Arab Emirates for the purpose of the 1978 Act and once again a certificate to that effect has been issued, signed by the Secretary of State. (4) It is, however, not a territory in respect of which an order under s 14(5) has been made. It therefore is treated just like a separate entity under s 14(2) of the 1978 Act. (5) As such, it has no immunity of its own, it only obtains the immunity it can acquire under s 14(2)(a), when it does things in the exercise of the sovereign authority of the United Arab Emirates. (6) Sheikh Zayed is the Ruler of Abu Dhabi. In that capacity, he is not a head of state within the meaning of the 1978 Act.” (pp.111-113)
33. Mr Manknell’s argument under the State Immunity Act is that there has been no Order in Council as provided for in section 14(5) and the contrary is not argued by Mr Macdonald. He relies on the certificate provided by the Secretary of State and submits that that is conclusive of the matter. He argues that the certificate may not be questioned by the courts and cites authority for that proposition – e.g. Trawnik v Lennox [1985] 1 WLR 532. This concerned a certificate issued under the Crown Proceedings Act 1947 and while the case is by no means on all fours with the appeal before us, the submission is not challenged by Mr Macdonald. However Mr Macdonald argues that while the certificate is conclusive it does not deal with the issue with which we are concerned.
34. In our view this certificate is clear and conclusive. Section 14(1) of the 1978 Act records that the immunities and privileges conferred “by this Part of this Act” extends to Commonwealth states which include references to “the sovereign or other head of that State in his public capacity”. Section 14(5) is the only way in which the provisions of Part 1 of the 1978 Act (apart from section 12 which is not relevant) may apply to constituent territories of a federal state. Malaysia is a federal state and Pahang is a constituent part of that federal state.
35. Reliance cannot be placed on the Diplomatic Privileges Act 1964 – it is not suggested as Mr Manknell submits that either the appellants or the Sultan are members of a diplomatic mission. Any entitlements derive from section 20(1) of the 1978 Act. However, for the reasons we have already given, the appellants do not enjoy state immunity by virtue of the 1978 Act. No reliance is placed by Mr Macdonald on the fact that the Sultan was once the head of state and as Mr Manknell notes the 1964 Act makes express provision in relation to former heads of state.
36. Turning to the case law, it is clear, as Laddie J observed, that until the passing of the 1978 Act state immunity was a matter of common law and the extent of that immunity “was the subject of some difficult case law”. It is Mr Manknell’s submission, which we accept, that the 1978 Act marked a significant change from the previous common law Rules and without doing any violence to the doctrine of precedent, the case of Mellenger, decided in 1971, has to be read in the light of subsequent legislation. Mr Manknell drew our attention to “The Law of State Immunity” by Dame Hazel Fox (2nd Edition, 2008) at pages 255-256 where it was observed:
“The Act makes no distinction between political sub-divisions and constituent units of a federal state and takes a more restrictive line to the conferment of immunity on agencies created by such federal units than did the Court of Appeal in Mellenger…”
There is a passage at page 433 to similar effect.
37. In our view the certificate issued by the Secretary of State does not duck the question, it answers it conclusively.
38. In paragraph 12 of the appellant’s skeleton argument it is stated, as noted above, that the submissions of the appellants are premised on the fact that the Sultan is entitled to sovereign immunity:
“This needs to be evidenced by a letter or certificate from the Secretary of State for the Foreign and Commonwealth Office (FCO) (see below paragraph 8).”
39. This may have been intended to be a reference to paragraph 18 which also sets out part of the Immigration Directorate’s Instructions.
40. Of course Mr Macdonald recognises that there is now a certificate and we have considered and rejected his submissions that the certificate does not deal with the issue herein. The Instructions refer to section 20(3) of the State Immunity Act and we do not find that they take matters any further.
41. Although the issues in the Abu Dhabi case were somewhat convoluted the basic principles appear clear enough. The Sultan is sovereign under Malaysian law in the State of Pahang and there is no doubt about that. However he is not entitled to state immunity nor are his servants, the appellants. That will remain the position absent an Order in Council or until such time that he becomes the Yang Di-Pertuan Agong.
42. That really disposes of the appeals but we perhaps should mention that during the discussion of the appellants’ position under the Immigration Rules Mr Manknell submitted that the Sultan was in no different position from any wealthy private individual who wished to take his servants with him. While we have no doubt that that is so in strict theory, not every private individual has been a head of state entitled to sovereign immunity in the past and nor is every private individual entitled to expect (assuming he lives long enough) that he might be head of state in the future. Nor is every private individual sovereign in part of a federal state. Apparently the appellants have in the past come to the United Kingdom and no doubt the Sultan has travelled to this country for many years without difficulty with such members of his entourage as he requires. Whether the Sultan and his household can be accommodated in the future is a matter for the respondent though until recently their peregrinations were not apparently seen as a source of controversy.
43. For the reasons we have given, these appeals must be dismissed.
Signed Date 6 February 2009
Senior Immigration Judge Warr
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Heard at Taylor House
On 27 January 2009
Before
SENIOR IMMIGRATION JUDGE WARR
IMMIGRATION JUDGE BREWER
Between
Appellants
and
ENTRY CLEARANCE OFFICER – KUALA LUMPUR
Respondent
Representation:
For the Appellants: I A Macdonald QC, instructed by Grange & Castle, Solicitors
For the Respondent: D Manknell of Counsel, instructed by the Treasury Solicitors
Where an appellant claims State immunity a certificate issued by the Secretary of State under s.21 of the State Immunity Act is conclusive and may not be questioned by the Tribunal.
DETERMINATION AND REASONS
1. The appellants are citizens of Malaysia. They seek to enter the United Kingdom as part of the entourage of the Sultan of Pahang. The first three named appellants are police/security officers and the remaining appellants are household staff. The individual circumstances of the appellants do not matter for reasons that will appear. Their applications for entry clearances were refused under paragraphs 159A and 320(11) and (12) of HC 395. Taking the circumstances of the first named appellant as an example, he was born on 19 September 1959 and applied for an entry clearance on 14 February 2008 which was refused on 15 February 2008. In refusing the application the Entry Clearance Officer noted that the appellant had previously applied for an entry clearance on 24 April 2007 as a domestic worker. When he was called to attend an interview in connection with this application he withdrew it, obtaining a new passport on 4 May 2007 on which he travelled to the United Kingdom. He was admitted to the United Kingdom as a visitor on 5 May 2007 and 23 July 2007 although he had stated that he had in fact been accompanying his employer, the Sultan, on those occasions. The appellant’s previous passport indicated he had previously entered the United Kingdom as a domestic worker and the Entry Clearance Officer drew the inference that there had been a calculated attempt to deceive the Immigration Officer in the United Kingdom as to his intentions and immigration history. The respondent:
“was not satisfied on the balance of probabilities that you have not worked when you previously entered the UK as a visitor and that you have not employed deception to gain entry to the UK. Paragraph 320(11) and (12). These are normally grounds on which entry clearance to the UK should be refused. I have considered your application carefully taking into account the statement from your employer but I am not satisfied that this is an adequate basis to satisfy these provisions of the Immigration Rules and I am therefore not prepared to exercise discretion in your favour.”
2. The case was reviewed on 28 July 2008 and the decision was maintained. In paragraph 6 of the explanatory statement it was stated as follows:
“The appellant’s representative has suggested that he is serving staff of a ‘sovereign or head of state’, HRH Sultan of Pahang. However HRH Sultan of Pahang is one of nine sultans of states comprising Malaysia. There is a king or Agong who is nominated from one of these sultanates and I would therefore consider that this immunity would apply only to the head of state of Malaysia, the Agong, and not to the other state sultans.”
3. The Entry Clearance Officer noted that the appellant had applied as a domestic worker and had been assessed as such.
4. In the grounds of appeal it was contended that the appellant was a member of the serving staff of a sovereign or head of state (the Sultan of Pahang) and was accordingly immune from immigration control and the respondent had been wrong to conclude that the appellant was coming to work in the United Kingdom within the meaning of the Immigration Rules. An amended skeleton argument was served on 14 August 2008 stating that the main ground of appeal concerned sovereign immunity and each of the appellants were entitled to immunity from the immigration laws under section 8(3) of the Immigration Act 1971 read with section 20 of the State Immunity Act 1978. The submissions of the six appellants were:
“premised on the fact that the Sultan is entitled to sovereign immunity. This needs to be evidenced by a letter or certificate from the Secretary of State for the Foreign and Commonwealth Office (FCO) and the submissions were premised on the fact that adequate proof of exemption is to hand.”
5. On 10 November 2008 the Head of Protocol at the Foreign and Commonwealth Office certified that
“Pahang is a constituent territory of Malaysia which is a federal state;
Haji Ahmad Shah, Al-Musta’in Billah ibni Almarhum Sultan Abu Bakar Ri’Ayatuddin Al-Mu’Adzam Shah is the Sultan of the territory of Pahang and is not the Head of State of Malaysia;
His Majesty Al-Wathiqu Billah Tuanku Mizan Zainal Abidin Ibni Al-Marhum Sultan Mahmud Al-Muktafi Billah Shah is the Head of State of Malaysia.”
6. By virtue of Section 21 of the State Immunity Act 1978:
“A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question –
(a) whether any country is a State for the purposes of Part 1 of this act, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head or government of a State…”
7. Mr Macdonald in his submissions relied on his re-amended skeleton argument and confirmed that the concern was not with the individual appellants and the issues were almost entirely legal ones. When the Sultan visited the United Kingdom he required security and domestic staff. The starting point was the Secretary of State’s certificate. The certificate was right “as far as it goes and only so far as it goes it was conclusive”.
8. The Sultan of Pahang was not the Head of the State of Malaysia. The position in Malaysia was that the duties of Head of State circulated – he had once been Head of State but was unlikely, in view of his age, to be Head of State again. The real issue was whether the Sultan was the sovereign Head of the State of Pahang. He clearly was under Malaysian law the Head of State entitled to immunity and Mr Macdonald relied on the opinion of the Attorney General of Malaysia. Sovereign immunity could extend to the constituent states of a country with a federal constitution. Reference was made to the Immigration Directorate’s Instructions referred to in paragraphs 17 to 20 of the skeleton argument as re-amended.
9. Mr Macdonald referred to Mellenger v New Brunswick Development Corporation [1971] 2 All ER 593 where the Court of Appeal held that the province of New Brunswick was a sovereign state in its own right and entitled to claim sovereign immunity. The situation in Malaysia was very similar although it was acknowledged that some of the authorities relied on by the Attorney General in his opinion predated the Federation of Malaysia and the 1978 Act but were nevertheless informative.
10. Mr Manknell submitted that the respondent did not object to the matter being dealt with under section 84(e) of the 2002 Act on the basis that it was argued that the decision being challenged was not in accordance with the law. The certificate, however, was unchallengeable. It was accepted by the appellants that the certificate was conclusive of the matters contained in the certificate. The Secretary of State was not in a position to dispute the evidence that the Sultan was entitled to immunity under Malaysian domestic law. Reliance was placed by the appellants on section 20 of the State Immunity Act and it was accepted that Pahang constituted a state within a federal territory.
11. It was submitted that the appellants were either entitled to immunity or they were not. He referred to section 14(1)(a) of the State Immunity Act which reads as follows:
“(1) The immunities and privileges conferred by this Part of the Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to –
(a) the sovereign or other head of that State in his public capacity;…”
12. Counsel submitted that it was clear that in the absence of an Order in Council no part of Part 1 of the State Immunity Act apart from section 12 would apply to the constituent territories of a federal state and in support of that submission he relied on section 14(5) which reads as follows:
“Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State.”
13. Counsel submitted that there were only two Orders in Council in effect and they applied to the constituent territories of Austria and Germany respectively. Section 12 related to the service of process and judgments in default of appearance.
14. The certificate was conclusive and the Sultan was not a sovereign or head of State and there was no Order in Council providing otherwise and that was the end of the matter. Section 20 provided:
“(1) Subject to the provisions of this Section and to any necessary modifications, the Diplomatic Privileges Act 1974 shall apply to –
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants….
(5) This Section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part 1 of this Act and it is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity.”
15. Counsel submitted that the Sultan of Pahang could not be a sovereign or other head of State on which immunities were conferred by Part 1 because he was not head of State as confirmed by the Secretary of State’s certificate. Sovereign was a sub-category of heads of State. One could not be a sovereign without being a head of State.
16. Counsel submitted that the Diplomatic Privileges Act 1964 did not take matters any further since it had not been argued by the appellants that they were members of a diplomatic mission and reliance placed on the 1964 Act arose solely as a result of section 20(1) of the State Immunity Act 1978. The 1978 Act provided that the 1964 Act should apply to a sovereign or other head of State but for the purposes of the State Immunity Act the Sultan of Pahang is not a sovereign or other head of State and so the Diplomatic Privileges Act 1964 did not extend to him or his staff by virtue of the State Immunity Act. The Sultan of Pahang would have been head of State in Malaysia in the 1980s but the Diplomatic Privileges Act did not extend to former heads of State – Counsel referred to Article 39(2) of Schedule 1 to the Diplomatic Privileges Act.
17. With reference to the case law relied upon, it was submitted that the State Immunity Act 1978 significantly changed the common law Rules. They were irrelevant. The Bank of Commerce International (Overseas) Limited (in liquidation) v Price Waterhouse (a firm) [1997] 4 All ER 108 (“the Abu Dhabi case”) had been relied on heavily by the appellants but the crucial point was that the sovereign immunity accorded to the ruler of Abu Dhabi was not a result of his being a ruler of a constituent territory of the United Arab Emirates but because of his concurrent status as President of the United Arab Emirates. That distinction had been recognised in R (Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin) at paragraph 11 (Silber J). The correctness of the decision in Mellenger had been doubted.
18. The circumstances in this case were clear and straightforward and the Secretary of State’s certificate was conclusive.
19. In reply we first canvassed with Mr Macdonald whether the appellants could succeed under the Immigration Rules were we to be against him on the sovereign immunity point. It transpired that none of the appellants could make out a case under the Immigration Rules – the individual circumstances and the precise requirements of their services to the Sultan and other matters meant that they could not comply with paragraph 159A and no other obvious paragraphs of the Rules could be made applicable to them. Mr Macdonald was constrained to admit that he could not bring the appellants within the Rules and accordingly the only issue in the case was state immunity. If the appellants won on that they all won. If they lost on that they all lost.
20. In relation to the deception issue, it was agreed between the representatives that the burden lay on the Secretary of State. Mr Macdonald submitted that the Secretary of State had not discharged that burden.
21. On the state immunity issue, the certificate did not decide that Pahang was not a state. In determining whether a body was entitled to sovereign immunity one needed to look at the constitution of the state concerned. In Almieyeseigha the Court had considered the Nigerian constitutional provisions. The circumstances in Malaysia were totally different. Furthermore the Nigerian authorities had waived immunity.
22. Regard should be had to paragraph 32 of the Attorney General’s opinion where there was reference to Article 36 of the constitution which provided: “‘Sovereign’ means the Sultan and ruler of the state of Pahang and includes his successors”.
23. The Abu Dhabi case turned on its own facts. Merely because a case was recent, that did not overturn the doctrine of precedent and the case of Mellenger was still a binding authority. The Court of Appeal in Mellenger had referred to a statute of the Westminster Parliament and it decided that sovereign immunity extended to the constituent states of a country which had a federal constitution such as a Canadian province. The certificate ducked the issue. If the Secretary of State had said that Pahang was not a sovereign state that would be the end of the issue. In the absence of a certificate one had to go back to the basic principles. If we were against him on the certificate, that would be the end of the matter.
24. At the conclusion of the submissions we reserved our determination and we must express our thanks to Counsel on both sides for their helpful guidance through somewhat unfamiliar territory.
25. Counsel also helpfully narrowed the issues. The sole point on which the appellants rely is the issue of state immunity. If they win on that all the appeals are to be allowed and if they lose on that all the appeals are to be dismissed. No argument is put forward that they could otherwise succeed under the Immigration Rules.
26. On the issue of jurisdiction, attention was given to the possibility of applying for judicial review but it was felt appropriate to exercise a statutory appeal right as it might be said that the appellants had not exhausted their alternative remedies. We approach the issues, therefore, on the footing, agreed by both parties, that we have jurisdiction to investigate the issue of state immunity on the basis that if state immunity applied the decision taken by the respondent would not be in accordance with the law.
27. As we are not concerned with the Immigration Rules, it follows that it is not necessary in this determination to deal with the issue of deception. Had we had to decide the issue, we would readily have accepted that the appellants were acting under orders and we would have been slow to conclude that they had been ordered to do anything deceptive. There is in the papers a witness statement signed by the Equerry Officer employed by the Sultan who sets out the background circumstances to the applications. It is stated that the palace was confused when it was advised that some colleagues should apply for visas while some should not. The palace brought a number of passports to the Entry Clearance Officer to ascertain whether they needed visas “in the interests of transparency, and the palace’s desire to ensure that it complied with all the relevant immigration laws…”
28. The burden of proof in alleging deception rests on the respondent. The particular paragraphs relied on by the respondent do not make refusal mandatory but allow for the exercise of discretion. Had we found it necessary to decide the issue, we would have been extremely unlikely to find that anyone concerned in this case was party to contumelious conduct. Whatever the eventual outcome, we would hope that any suggestion of impropriety was expunged from the records of all those concerned.
29. We have the benefit of an opinion from the Office of the Malaysian Attorney General. The High Court in Almieyeseigha was somewhat dismissive of the opinions of the Attorneys General in that case – see paragraph 7 of the judgment of Silber J:
“The issue whether the claimant is entitled to state immunity is essentially a question of law for the courts of this country on which the views of either Attorney General is not of any value…”
30. However Mr Manknell states that the respondent is not in a position to dispute the opinion given insofar as it relates to Malaysian law and the position of the Sultan under Malaysian law. Under Article 2 of the Constitution of the Pahang “The sovereign is the fountainhead of justice and of all authority in the state and territory of Pahang and all its dependencies and, thereby, the head of all titles and dignities, honours and awards in the state and the government thereof”. The Sultan ascended to the throne on 7 May 1974. The Sultan was elected Yang Di-Pertuan Agong on 26 April 1979 and served his full five year term of office until 25 April 1984. He was eligible to be re-elected as the Yang Di-Pertuan Agong for as long as he remained the ruler and Sultan of Pahang. The Yang Di-Pertuan Agong is appointed from among the nine state rulers on a rotational basis of five years as provided by the Constitution.
31. There is no doubt that during the period when he was elected to be the Yang Di-Pertuan Agong the Sultan did enjoy state immunity as the sovereign head of the Federation of Malaysia. However that period has now passed although he is still entitled to be elected in due course to that office. Mr Manknell firmly rests his argument on the 1978 Act and the certificate issued thereunder. The background to the legislation is set out in the judgment of Laddie J in the Abu Dhabi case as follows at p.110:
“There are two statutes which are relevant to this application, the Diplomatic Privileges Act 1964 and the State Immunity Act 1978. The first is concerned to bestow immunity in respect of civil and criminal proceedings on diplomatic staff. This Act implements many of the provisions of the Vienna Convention on Diplomatic Relations and Optional Protocol concerning the Compulsory Settlement of Disputes signed in 1961. In particular, it brings into effect in our domestic law, the provisions of art 31 of that convention, which, so far as relevant to this application, reads as follows:
‘1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of … (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions …’
When the 1964 Act became part of our law, it did not affect the common law immunity of heads of state, but only the immunity of representatives of a state, such as ambassadors. The 1978 Act is concerned primarily with state immunity. Until the passing of that Act, state immunity was a matter of common law and the extent of that immunity was the subject of some difficult case law.”
32. Laddie J then considered the position of states and the head of a state and it is helpful to set out the following extract from the judgment:
“The 1978 Act includes two significant provisions relating to the sovereign or head of state, that is to say a sovereign or head of state of a state recognised by virtue of the issue of a suitable certificate. The first, s 20(1)(a), provides:
‘Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to – (a) a sovereign or other head of state…’
Thus, the head of state has all the immunities bestowed on diplomatic personnel such as ambassadors. Secondly, in some cases, it is possible to bring proceedings against the head of state as representing the state itself. Because that is so, s 14(1)(a) of the 1978 Act provides:
‘The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to – (a) the sovereign or other head of that State in his public capacity …’
This means that when a head of a recognised state is acting in his private capacity, he has the same immunities as say, the ambassador of that state under the 1964 Act. On the other hand, when acting in his public capacity, effectively as the embodiment of the state, he has all the immunities the state has under the 1978 Act. It would appear at first blush that the immunities are cumulative, thus the fact that he has immunities when acting in a public capacity, does not detract from the immunities derived from the 1964 Act by virtue of s 20(1) of the 1978 Act. (see in this regard s 16 of the 1978 Act.)
If in this case the defendants had been trying to bring third party proceedings against the head of a recognised state in his private capacity, the provisions of the 1964 Act would give him immunity from suit. In particular, the provisions of art 31(1)(c) of the convention only removes the immunity from suit where the diplomatic agent, or in his case head of state, is carrying on a professional or commercial activity in the receiving state, that means in England. There is no suggestion that Sheikh Zayed is carrying on or has carried on any relevant activity in England. Furthermore, as Mr Goldsmith accepted, to avoid immunity it would be necessary to show that the head of state carried on a continuous business activity here with a view to profit. That also was not asserted against Sheikh Zayed.
However, these are not the only statutory provisions relevant to this application. A recognised state may be a federation. The 1978 Act makes certain provisions for the constituent territories of such a federation. In particular, s 14(5) provides:
‘Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State.’
For example, an Order in Council might have the effect of treating the constituent territory as if it were itself a recognised state, so that the head of the constituent territory would also be treated as if he were head of a recognised state.
However, if there is no such order, s 14(6) applies and that provides:
‘Where the provisions of this Part of this Act do not apply to a constituent territory by virtue of any such Order subsections (2) and (3) above shall apply to it as if it were a separate entity.’
This refers back to s 14(2)(a) and (b) which are the only provisions of s 14 to which it is necessary to refer for the purpose of this application. Section 14(2) is in the following terms:
‘A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if – (a) the proceedings relate to anything done by it in the exercise of sovereign authority; and (b) the circumstances are such that a State (or, in the case of proceedings to which section 10 above applies, a State which is not a party to the Brussels Convention) would have been so immune.’
It is now possible to consider the effect of these provisions on the position of a constituent state which is not the subject of an order. When such a state does something, ‘in the exercise of sovereign authority’, it is given the benefit of the same immunities as the state of which it forms a constituent part. It is not in dispute that the ‘sovereign authority’ in s 14(2)(a) is a reference to the sovereign authority of the recognised state. In other words, when a constituent territory or other separate entity acts for and on behalf of the recognised state and effectively acts as if it was exercising the state’s sovereign authority, it obtains the immunity that the state would have obtained, had it acted on its own behalf.
Secondly, if it does not fall within the provisions of s 14(2)(a), the constituent territory or other separate entity has no immunity. It neither falls under s 14 nor does it obtain immunity under the 1964 Act. In particular, there is no equivalent provision to s 20(1)(a) extending to such a constituent territory any of the 1964 Act immunities. This is not surprising because the 1964 Act immunities are clearly concerned with giving immunities from suit to individuals rather than territories.
With that in mind, it is possible to turn to the particular facts of this case. Most of these facts I do not understand to be in dispute. (1) the United Arab Emirates is a state within the meaning of the 1978 Act, a certificate to that effect has been signed by the Secretary of State. (2) His Highness Sheikh Zayed is the head of that state. (3) Abu Dhabi is a constituent territory of the United Arab Emirates for the purpose of the 1978 Act and once again a certificate to that effect has been issued, signed by the Secretary of State. (4) It is, however, not a territory in respect of which an order under s 14(5) has been made. It therefore is treated just like a separate entity under s 14(2) of the 1978 Act. (5) As such, it has no immunity of its own, it only obtains the immunity it can acquire under s 14(2)(a), when it does things in the exercise of the sovereign authority of the United Arab Emirates. (6) Sheikh Zayed is the Ruler of Abu Dhabi. In that capacity, he is not a head of state within the meaning of the 1978 Act.” (pp.111-113)
33. Mr Manknell’s argument under the State Immunity Act is that there has been no Order in Council as provided for in section 14(5) and the contrary is not argued by Mr Macdonald. He relies on the certificate provided by the Secretary of State and submits that that is conclusive of the matter. He argues that the certificate may not be questioned by the courts and cites authority for that proposition – e.g. Trawnik v Lennox [1985] 1 WLR 532. This concerned a certificate issued under the Crown Proceedings Act 1947 and while the case is by no means on all fours with the appeal before us, the submission is not challenged by Mr Macdonald. However Mr Macdonald argues that while the certificate is conclusive it does not deal with the issue with which we are concerned.
34. In our view this certificate is clear and conclusive. Section 14(1) of the 1978 Act records that the immunities and privileges conferred “by this Part of this Act” extends to Commonwealth states which include references to “the sovereign or other head of that State in his public capacity”. Section 14(5) is the only way in which the provisions of Part 1 of the 1978 Act (apart from section 12 which is not relevant) may apply to constituent territories of a federal state. Malaysia is a federal state and Pahang is a constituent part of that federal state.
35. Reliance cannot be placed on the Diplomatic Privileges Act 1964 – it is not suggested as Mr Manknell submits that either the appellants or the Sultan are members of a diplomatic mission. Any entitlements derive from section 20(1) of the 1978 Act. However, for the reasons we have already given, the appellants do not enjoy state immunity by virtue of the 1978 Act. No reliance is placed by Mr Macdonald on the fact that the Sultan was once the head of state and as Mr Manknell notes the 1964 Act makes express provision in relation to former heads of state.
36. Turning to the case law, it is clear, as Laddie J observed, that until the passing of the 1978 Act state immunity was a matter of common law and the extent of that immunity “was the subject of some difficult case law”. It is Mr Manknell’s submission, which we accept, that the 1978 Act marked a significant change from the previous common law Rules and without doing any violence to the doctrine of precedent, the case of Mellenger, decided in 1971, has to be read in the light of subsequent legislation. Mr Manknell drew our attention to “The Law of State Immunity” by Dame Hazel Fox (2nd Edition, 2008) at pages 255-256 where it was observed:
“The Act makes no distinction between political sub-divisions and constituent units of a federal state and takes a more restrictive line to the conferment of immunity on agencies created by such federal units than did the Court of Appeal in Mellenger…”
There is a passage at page 433 to similar effect.
37. In our view the certificate issued by the Secretary of State does not duck the question, it answers it conclusively.
38. In paragraph 12 of the appellant’s skeleton argument it is stated, as noted above, that the submissions of the appellants are premised on the fact that the Sultan is entitled to sovereign immunity:
“This needs to be evidenced by a letter or certificate from the Secretary of State for the Foreign and Commonwealth Office (FCO) (see below paragraph 8).”
39. This may have been intended to be a reference to paragraph 18 which also sets out part of the Immigration Directorate’s Instructions.
40. Of course Mr Macdonald recognises that there is now a certificate and we have considered and rejected his submissions that the certificate does not deal with the issue herein. The Instructions refer to section 20(3) of the State Immunity Act and we do not find that they take matters any further.
41. Although the issues in the Abu Dhabi case were somewhat convoluted the basic principles appear clear enough. The Sultan is sovereign under Malaysian law in the State of Pahang and there is no doubt about that. However he is not entitled to state immunity nor are his servants, the appellants. That will remain the position absent an Order in Council or until such time that he becomes the Yang Di-Pertuan Agong.
42. That really disposes of the appeals but we perhaps should mention that during the discussion of the appellants’ position under the Immigration Rules Mr Manknell submitted that the Sultan was in no different position from any wealthy private individual who wished to take his servants with him. While we have no doubt that that is so in strict theory, not every private individual has been a head of state entitled to sovereign immunity in the past and nor is every private individual entitled to expect (assuming he lives long enough) that he might be head of state in the future. Nor is every private individual sovereign in part of a federal state. Apparently the appellants have in the past come to the United Kingdom and no doubt the Sultan has travelled to this country for many years without difficulty with such members of his entourage as he requires. Whether the Sultan and his household can be accommodated in the future is a matter for the respondent though until recently their peregrinations were not apparently seen as a source of controversy.
43. For the reasons we have given, these appeals must be dismissed.
Signed Date 6 February 2009
Senior Immigration Judge Warr