ADJUDICATION OFFICER DECISION

Adjudication References:

ADJ-00024780, ADJ-00024820, ADJ-00024823, ADJ-00024824 & ADJ-00024826

Parties:

	Complainant	Respondent
Anonymised Parties	A Traveller	The United States of America

Representatives

Mark Connaughton S.C. instructed by McCann Fitzgerald

Complaint(s):

Act	Complaints Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00031284-001, CA-00031617-001, CA-00031619-001, CA-00031621-001, CA-00031622-001	03/10/2019

Date of Adjudication Hearing: 26/11/2020

Workplace Relations Commission Adjudication Officer: Hugh Lonsdale

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant claims she was discriminated by the respondent during pre-clearance at Dublin Airport. The respondent submits that I do not have jurisdiction to investigate the claims.

Preliminary Issue:

The respondent contests the jurisdiction of the Workplace Relations Commission to hear the complainants. They submit that the officials carrying out the activities from which these complaints arose are officials of the US Customs and Border Protection of the Department of Homeland Security of the USA, who enjoy immunity from suit in this jurisdiction pursuant to the legally binding agreement between the Government of the United States of America and the Government of Ireland on Air Transport Preclearance of 17 November 2008. Under the terms of the Agreement, Preclearance by United States Customs and Border Protection officials at Dublin Airport is an activity wholly carried out in accordance with US law.

The activities of the officials concerned were functions in the exercise of Governmental authority and that it follows therefore that the USA and its respective servants or agents are entitled to the benefits and privileges of the doctrine of state immunity.

They say that Ireland’s obligations with regard to state immunity derive from customary international law, which is recognised in Article 29.3 of the Constitution of Ireland.

They rely on two leading cases, i) Government of Canada v. The Employment Appeals Tribunal and ii) McElhinney V Williams & Her Majesty’s Secretary of State for Northern Ireland. The circumstances of the cases are very different but in both the Supreme Court confirmed the contemporary practice of states is consistent with a restrictive, as opposed to an absolute, theory of state immunity. This restrictive theory is predicated on the understanding that the foreign state’s immunity applies only to those activities that come within “the actual business or policy of the foreign government”, as per O’Flaherty J in the Government of Canada case. The respondent submits that the activities of the officials which are the subject of these complaints fall squarely within the scope of this category.

Whilst the majority of cases in this area involve employment claims, the principles underlying claims of sovereign immunity are equally applicable outside of employment cases. The key distinguishing feature in determining whether the doctrine applies in any given instance is the nature of the activity in question, and the extent to which it is bound into the area of governmental activity of the foreign state. It is submitted that one could not find a clearer example of an activity inherent to the idea of government or sovereign activity than the circumstances of the present case, i.e. the assessment of whether a person should be admitted to the USA.

The complainant submits I do have jurisdiction to hear her complaints as the actions which are the subject of her complaints took place in Ireland and are therefore subject to Irish law.

Findings and Conclusions:

Before looking into the substance of the claims I will look into the preliminary issue raised by the respondent that they are protected by the doctrine of sovereign immunity, even in its restricted form.

“Sovereign immunity” may be defined as a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. It is a principle of international law which exempts a sovereign state from the jurisdiction of foreign national courts.

I have considered the Respondent’s submission and its reliance on the cases referred to above. I have particularly considered the test laid down in Government of Canada by McCarthy J. (adopting the dicta of Lord Wilberforce in Congreso del Partido [1983] A.C. 244 at 267) is that it must decide;

‘whether the relevant acts upon which the claim is based should, in that context, be considered within an area of activity, trading or commercial, or otherwise of a private law character…or whether it should be considered as having been done outside that area, and within the sphere of government or sovereign activity’.

Although these complaints do not involve employment issues I find that the activity involved in the complaints ‘Truly touches the actual business or policy of the foreign government then immunity shall still apply.’, as described by Flaherty J. in Government of Canada.

The doctrine of sovereign immunity may now be a restricted one but, on the basis of the authorities before me, I find that the activities carried out by the individuals who are the subject of these complaints fall within the criteria set out and, therefore, that I do not have jurisdiction to hear the complaints.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

For the reasons set out above I find that I do not have jurisdiction to investigate these claims made under the Equal Status Acts.

Dated: 26th February 2021