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Last Updated: Tuesday, 7 September, 2004, 12:00 GMT 13:00 UK
Diplomatic immunity? Not from the taxman
By Jon Silverman
Home Affairs Analyst

It's not just criminal offences that thrust the issue of diplomatic immunity into the legal spotlight. The case of a cook in London's Namibian High Commission has proved that no one is safe from the taxman.

Inland Revenue headquarters
The Inland Revenue is unimpressed by diplomatic immunity

The revelation that a Saudi diplomat, living in London, used his status to plead immunity to avoid prosecution for indecent assault against an 11-year-old girl, has focused attention on the concept of diplomatic immunity and the law.

The latest available figures from the Foreign Office show that embassy staff based in London escaped charges for 21 serious offences in 2002-03.

Each case is a source of frustration to the police, though far more media coverage is usually given to the backlog of unpaid parking fines amassed each year by foreign diplomats - 173,000 in 2002-03.

But there is another side of the coin, in which foreign staff feel they have been unfairly treated by the UK authorities.

Lutgarda Jimenez is a Philippines national who has been based in London since 1991, when she began working as a cook at the Zambian High Commission.

Six grand don't come for free

The following year, she moved to the Namibian High Commission, where she has worked ever since, both as a cook and as a receptionist.

That year, she returned to the Philippines to visit her mother who was ill and, on her return to the UK, was exempted from immigration control at Heathrow as a member of a diplomatic mission.

Then in 1993, her passport was endorsed by the Home Office to show that "while the holder is employed as a cook at the Namibian High Commission, she is not subject to any condition or limitation on the period of permitted stay in the UK".

So Mrs Jimenez was perhaps entitled to believe that she enjoyed the status of diplomatic immunity and, accordingly, claimed exemption from UK tax in 1995.

The legal basis of her claim was that, under the 1961 Vienna Convention on Diplomatic Relations, she was a member of the "service staff" of the mission - and the convention states that such staff, if they are not nationals or permanent residents of the host state, are not liable for tax.

So far, so clear?

Cash
The tax bill was slightly more than seven quid

If it isn't, that explains why the case has ended up being adjudicated by the Special Commissioner for tax appeals, in a landmark judgment. Remarkably, this was the first time that the convention had been tested in a British court.

The Commissioner found that Mrs Jimenez is indeed a member of the service staff of the High Commission. And he accepted that she intended, at some point, to return to the Philippines where her husband and other family members are living.

But still she lost the case. Why?

No one is safe

The taxman always has an eye for the fine print and lawyers pointed out that Article 39(1)of the 1961 Convention obliges the mission to notify the Foreign Office of the appointment of a member of its staff.

In Mrs Jimenez's case, the Inland Revenue argued that this obligation was not fulfilled. The Head of Protocol at the Foreign Office confirmed this view, which means that, despite twelve years of service, Mrs Jimenez has never, legally, been a member of the mission.

The Special Commissioner agreed with this interpretation and thus Mrs Jimenez has lost her chance to recoup 5,494.44 in tax.

It will probably be small comfort to her that the Commissioner upbraided the Inland Revenue for "not being very helpful" in explaining why she failed to qualify for tax exemption.

Though part of the problem may lie in the wording of the Vienna Convention, which one of the world's leading authorities on diplomatic immunity, Professor Eileen Denza, describes as " not exactly a model of clarity".

But perhaps bigger trials lie ahead.

As Professor Denza points out, the definition of what constitutes the family of a diplomat for the purposes of legal immunity has never been clarified by a judge either. Surely, it can only be a matter of time.


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