State practice, and the views of seventeenth and eighteenth century writers on diplomatic law, differed on the question whether a diplomatic agent or other member of the mission who was a national of the receiving State should be entitled to privileges and immunities. Bynkershoek, as a logical consequence of his theory that the basis of immunities was a general understanding that the ambassador should remain subject to the jurisdiction of his own prince, maintained strongly that there was no justification for allowing immunity to the ambassador who was a national of the receiving State.1 Vattel on the other hand assumed that any ambassador would be immune from the jurisdiction of the receiving State in matters relating to Page Id: 413ReferencesVienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, (1972) 23 UST 3227Art.38Art.38, (1)Art.38, (2)(p. 414) his mission. As regards other matters, he took the view that whether the ambassador was immune depended on whether he was a ‘subject’ of the State to which he was sent. If the receiving State accepted him as an envoy without either a specific reservation or a general provision in its laws denying privileges and immunities to its own nationals, then it was to be presumed that he became independent of the receiving State for the duration of his mission. This presumption of independence could however be rebutted if the ambassador engaged in trading in the receiving State.2 The writer and diplomat Wicquefort was a Dutch national acting as representative of the Duke of Lüneburg to Holland when he was imprisoned and his property was confiscated. It is not surprising that in his later book L’ambassadeur he strongly advocated the independence from local jurisdiction of a diplomat who was a national of the receiving sovereign.3 It is perhaps easier to reconcile these apparently conflicting views by recollecting that nationality did not at that period have the precise meaning later given to it and that a change of allegiance could be effected without the formalities which would be necessary under twentieth-century laws.
The rule expounded by Vattel was followed much later in England in the case of Macartney v Garbutt,4 where the court held that a member of a mission was not disqualified from entitlement to immunity under the Diplomatic Privileges Act 1708 unless at the time of his reception it had been made a condition that he should not be entitled to privileges and immunities. By the Diplomatic Immunities (Commonwealth Countries and the Republic of Ireland) Act 19525 and the Diplomatic Immunities Restriction Act 1955,6 however, UK nationals in diplomatic missions were deprived of immunities. Many other States also provided in their law that their own nationals should not be entitled to privileges and immunities, or at least that they should not be accorded tax privileges.7 It was, however, relatively rare for nationals of the receiving State to be appointed as Page Id: 414ReferencesDi Sorbello (Marchese), Re, Decision of the Central Commission for Direct Taxes, (1941-42) 10 ADIL 355 (Case No 108), 26th March 1941, ItalyDiplomatic Immunities (Commonwealth Countries and the Republic of Ireland) Act (United Kingdom [gb])Diplomatic Immunities (Restriction) Act (United Kingdom [gb])Diplomatic Privileges Act (United Kingdom [gb]) 1708 c.12 (7 Anne)Macartney v Garbutt,  24 QBD 368, 24th February 1890, United Kingdom; England and Wales; High Court [EWHC]; Queen's Bench Division [QBD]Public Prosecutor v Sluys, (1961) 24 ILR 529, 19th February 1957, Belgium; Brussels; Court of Appeal(p. 415) diplomatic agents of some other State without specific agreement as to their privileges and immunities. There is no evidence that civil or criminal proceedings were ever brought against such persons in respect of their official acts—this would have been regarded as a breach of sovereign immunity.
‘permanently resident in the receiving State’
There is normally no difficulty in determining whether a member of a diplomatic mission is a national of the receiving State, since international law provides that subject to a few limitations this is a question to be determined by the municipal law of each State. But the meaning of the words ‘permanently resident in the receiving State’ is not clearly established in international law and its interpretation in the context of the Vienna Convention has given rise to considerable difficulty.
In a number of States there does exist a distinct status of ‘permanent resident’ which may give rise to certain rights to continuing stay in the territory or to Page Id: 418ReferencesVienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, (1972) 23 UST 3227Art.37, (4)Art.38, (2)(p. 419) apply to become a naturalized citizen. There was, however, little evidence of its being used widely as a justification for withholding privileges or immunities. Amendments intended to withdraw privileges and immunities from permanent residents as well as nationals of the receiving State were proposed at a late stage of the Vienna Conference by Australia and by Canada, but although they were accepted by the Conference there is no record of clarification of the term by either of the sponsors.15 The Convention does not define the term and no power is given either to the sending or to the receiving State to determine unilaterally which members of a diplomatic mission are to be classed as permanently resident in the receiving State. Sending and receiving States must, therefore, for the purpose of administering privileges reach agreement on principles or procedures to be applied generally or at least on difficult cases as they arise.
The UK Government soon after becoming a party to the Convention in 1964 formed the view that the most satisfactory interpretation of the term depended on asking the question whether, but for his or her employment with the mission, the person concerned would choose to remain in the receiving State. At first there were differences with embassies in London over particular cases where the government authorities believed that a member of a mission claiming tax reliefs was permanently resident in the United Kingdom and so not entitled to diplomatic privileges. The greatest number of difficult cases involved women members of missions who were married to British husbands settled in the United Kingdom and who had been serving in the relevant mission in London for longer than the normal diplomatic or secretarial tour of up to five years. After a few years the Foreign and Commonwealth Office formulated general rules in the light of experience, and in January 1969 a Circular Note was sent to all diplomatic missions in London by the Secretary of State for Foreign and Commonwealth Affairs. The guidance was as follows:
The guidance was to apply also to members of consular posts, and it was made clear that determinations of permanent residence in the context of the two Vienna Conventions would not affect the position of individuals under UK immigration laws. The rules cannot in themselves decide all difficult cases and it has sometimes been found necessary for consultations as envisaged in paragraph 4 of the Note to take place. But they have not been generally challenged either by criticism from the diplomatic corps in London or in the context of legal proceedings and the length of time during which they have been Page Id: 420ReferencesDiplomatic Privileges Act (United Kingdom [gb]) 1964 c.81(p. 421) applied has strengthened their claim to constitute a reasonable interpretation of permanent residence for the purposes of Article 38.
The status of the 1969 Circular was judicially considered for the first time in the United Kingdom in 2004 in the case of Lutgarda Jimenez v Commissioners of Inland Revenue.16 Mrs Jimenez was employed as a locally engaged cook by the High Commission of Namibia in London in 1992 and claimed that she was entitled as a member of the service staff of the mission to tax relief under Article 37.3 on her earnings. Members of the service staff who are ‘permanently resident in the receiving State’ are, however, excluded from tax relief. Her claim was rejected by Special Commissioner John Walters QC mainly on the ground that her appointment as a member of the diplomatic mission of Namibia had never been notified to the Foreign and Commonwealth Office, and this aspect was considered above in the context of Article 10 of the Convention. It was also argued on behalf of Mrs Jimenez that she was not permanently resident in the United Kingdom because she had not acquired an English domicile of choice, but this approach to the interpretation of the term was rejected by the Special Commissioner. He maintained that he should in accordance with Article 31(3) of the Vienna Convention on the Law of Treaties take into account ‘any subsequent practice in the application of the treaty which established the agreement of the parties regarding its interpretation’. He noted that it was accepted by counsel for the parties that the provisions of the 1969 Circular had never been challenged by heads of mission in the United Kingdom and considered that on this basis it reflected customary international law which according to the Preamble to the Vienna Convention ‘should continue to govern questions not expressly regulated by the provisions of the Convention’. The key test set out in the Circular was whether the person was resident for a purpose unconnected with the holding of the status of membership of the mission. Under the terms of the Circular Mrs Jimenez was to be regarded as permanently resident in the United Kingdom and so she was disqualified from tax exemption.
In Belgium the Tribunal de Travail of Brussels also emphasized the importance of local recruitment in holding in 1971 in the case of Smith v Office National de l’Emploi17 that a British national locally engaged in 1962 to work for the British Embassy in Brussels was permanently resident in Belgium. The court held ‘that the applicant has had his permanent residence in Belgium since 1959 and that he was recruited on the spot as an employee by the services Page Id: 421ReferencesJimenez v Commissioners of Inland Revenue, Decision of the Special Commissioners of Income Tax,  UKSPC 00419,  STC (SCD) 371,  STI 1939, 23rd June 2004, United KingdomSmith v National Employment Agency, (1985) 69 ILR 276,  JTT 188, 17th May 1971, Belgium; Brussels; Labour CourtVienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, (1972) 23 UST 3227Art.10Art.37, (3)Vienna Convention on the Law of Treaties (United Nations [UN]) 1155 UNTS 331, UNTS Reg No I-18232Part III Observance, Application and Interpretation of Treaties, Section 3 Interpretation of Treaties, Art.31 General rule of interpretation, (3) IC(p. 422) of the Embassy and that he did not have the status of a career diplomatic or consular agent’.
In Canada the Legal Bureau of the Department of External Affairs in a memorandum of December 197618 gave the following advice on construction of ‘permanently resident’:
Although it would be convenient to be able to formulate a clear-cut definition of the phrase ‘permanently resident’ in Article 38 of the Vienna Convention on Diplomatic Relations, it seems necessary to consider each case on its merits. We could not say that residence for five years in Canada, for instance, or the fact of holding (or surrendering) landed immigrant status would in itself be conclusive in each case. Acquisition of landed immigrant status may be persuasive evidence of permanent residence, but surrender of that status does not necessarily mean the end of permanent residence….
Australia in a Circular Note of February 1989 to all diplomatic missions stated its policy as follows:19
A member of a diplomatic mission or consular post who has remained in Australia for a period exceeding six years may be determined, in the terms of the Vienna Conventions on Diplomatic and Consular Relations, to be permanently resident in Australia unless the Head of the Diplomatic Mission or Consular Post can satisfy the Department of Foreign Affairs that it should be otherwise. In making such a determination, the Department of Foreign Affairs will take into consideration a number of factors. These factors include:
German practice is broadly similar in that locally recruited personnel are presumed to be permanently resident unless the sending State gives binding assurances that they will be posted within the foreseeable future. Persons who are posted to Germany may change their status and become permanently resident if factors such as length of posting or marriage to a German national indicate intention to remain permanently in Germany.20 Switzerland and The Netherlands also start from the presumption that locally recruited staff are permanently resident in the receiving State.21
The US Government became a party to the Convention in 1972 and at first interpreted the words ‘permanently resident’ as equivalent to the term ‘permanent resident alien’ as that expression was employed in US immigration law. This status was the result of personal initiative by the individual, often in the context of an ultimate intention to seek US citizenship. In 1991, however, the Secretary of State in a Circular Note to chiefs of mission in Washington22 announced:
Upon careful review of the definition of ‘permanently resident in’, including the drafting of the Vienna Convention, the practice of other states, and the fundamental purposes of the Vienna Convention, the Department has determined that members of the administrative and technical and service staffs of diplomatic missions and consular employees and members of the service staff of consular posts in the United States will be considered permanently resident in the United States for the purpose of the Vienna Page Id: 423ReferencesVienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, (1972) 23 UST 3227(p. 424) Conventions unless the employing foreign state provides appropriate documentation to indicate that the sending state:
Such documentation may include a copy of the person’s contract with the employing foreign state, a copy of the person’s travel orders or any other material showing that the above criteria are satisfied.
Missions were given two months’ grace before implementation of this change in US practice to enable them to review the standards, communicate them to their governments, and prepare supporting documentation for staff who would not be considered permanently resident.23 In some cases tax privileges continued to be given on a basis of reciprocity as permitted under Article 47 of the Convention.
The US criteria—though applied only to junior staff of diplomatic missions—are otherwise considerably more restrictive than those applied by the United Kingdom, Canada, and Australia. They may be said to proceed on the basis of the same fundamental test—that the person would not be in the receiving State but for the requirements of the sending State—but the onus is clearly placed on the sending State to provide documentary evidence of its ‘requirements’, and the intentions of the individual are not taken into account. The United States claims more categorically than do those other States whose practice is described the right to make a unilateral determination of status for the purpose of Article 38. It does so, however, in the light of evidence from the sending State, and assurances from sending States, though they may be queried by the State Department, are ultimately accepted. Other States have not challenged the compatibility of the US criteria with Article 38, and they greatly reduce the scope for argument and for abuse.
The practice of all these States contemplates the possibility of a change of residence status during a diplomatic posting. France, however, has determined permanent residence status by reference only to circumstances at the time Page Id: 424ReferencesVienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, (1972) 23 UST 3227Art.47(p. 425) of the original notification, treating as permanently resident in France those persons who at that moment had normally lived in France for more than one year. In the context of a dispute with Iran in 1987 over M Gordji, a member of the diplomatic mission of Iran in Paris who was summoned to appear before a French court, the Ministry of Foreign Affairs, who had accepted M Gordji in 1984 as a permanent resident of France and so not entitled to immunity from jurisdiction, claimed that they were entitled to determine the residence status of employees of a diplomatic mission.24 The different approaches taken by France and the United Kingdom gave rise during the 1980s to bilateral and to European discussions. In 1987 the matter was resolved in the following terms:
Without prejudice to the views of the Governments of the Twelve concerning their interpretation of the concept of permanent residence for the purposes of the application of the Vienna Conventions on Diplomatic and Consular Relations, the Twelve take note of a modus vivendi whereby the United Kingdom will not treat as having permanent residence those members of the Diplomatic and Consular missions of the Twelve who were not permanent residents on the date on which they took up their posts and who remain in post for less than 10 years. At the end of this period should the Ambassador to whom the persons concerned are responsible certify that they remain in post because of a decision by the sending State, and that they remain liable to be re-assigned from the United Kingdom at any time, they would not be regarded as permanent residents.25
One curious feature of the Convention which may perhaps be accidental26 is that under Article 37.1 members of the family of a diplomatic agent forming part of his household do not lose entitlement to privileges and immunities if they are permanently resident in the receiving State but only if they are nationals of the receiving State. Families of junior staff under Article 37.2 lose entitlement on both grounds.