Immigration case proves useful guidance on the Court of Appeal’s approach to the defence of illegality

Background

Mrs Okedina brought Ms Chikale (the Claimant), to the UK to work for her as a live-in domestic worker in July 2013. Mrs Okedina applied for a domestic visa for the Claimant which was granted for a six-month period. When the Claimant’s visa expired, she was ensured by Ms Okedina that the necessary steps were being taken for her visa to be extended. Mrs Okedina made an application for an extension on the Claimant’s behalf, forging her signature and falsely claiming that she was a family member. The visa application was refused and later dismissed on appeal, without the Claimant’s knowledge. The Claimant continued to work for Mrs Okedina and her family until June 2015. She was required to work seven days a week, for very long hours and little pay. After asking for more money, she was dismissed summarily and ejected from Mrs Okedina’s house.

The Claimant brought claims in the Employment Tribunal (ET) for unfair and wrongful dismissal, unlawful deductions from wages (for both the terms of her contract and for breach of the national minimum wage), unpaid holiday pay, breach of the Working Time Regulations, failure to provide written particulars and itemised payslips, and race discrimination.

Employment Tribunal

The Claimant’s race discrimination claim failed but she was successful in her other claims, which were categorised as “contractual” as they were either made under or arose out of her contract of employment.

At the ET, Mrs Okedina raised the defence of illegality on the basis that the Claimant’s employment contract was illegal, or illegally performed because the Claimant no longer had leave to remain in the UK. Both Mrs Okedina’s statutory and common law illegality defences were rejected. The ET found that the Claimant was unaware that her visa had not been extended and therefore did not knowingly participate in any illegal performance of her contract.

Employment Appeal Tribunal

Mrs Okedina appealed in relation to the ET’s reasoning on illegality. The Employment Appeal Tribunal (EAT) agreed with the ET and dismissed her appeal.

Mrs Okedina was granted permission to appeal to the Court of Appeal specifically on the limited grounds of whether section 15 and 21 of the Immigration Asylum and Nationality Act 2006 (the Act) precluded an employee from pursuing contractual claims or claims arising out of an employment contract, where those claims arose at a time when the employee’s leave to remain has expired.

Court of Appeal

The Court of Appeal dismissed the appeal. On the statutory illegality defence the Court held that the Act was not directed at individuals working illegally, but to impose penalties on those who employed people working illegally. Therefore, the provisions of the Act do not expressly provide for a contract of employment to be unenforceable where an employee does not have the appropriate immigration status. The Court held that public policy did not require a construction of the statutory provisions which would have the effect of depriving innocent employees of all contractual remedies against the employer in circumstances of that kind.

The Court also agreed with the ET’s findings on common law illegality and that the Claimant’s contract was not rendered unenforceable as she had not knowingly participated in the illegal performance of her contract.

Comment

This case is useful guidance on the Court’s approach to the defence of illegality. However, it is somewhat unusual in that in most circumstances an employee will know that they have overstayed their leave and are working illegally. In those instances it will be more straightforward for an employer to rely on the defence of common law illegality on the basis of the employee’s knowledge.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.