It is unlawful to subject an individual to a detriment or dismiss them on the grounds that the...
Illegality and breach of immigration rules
Okedina v Chikale
A breach of the immigration rules did not mean that an employment contract was unenforceable.
Ms Chikale worked as a live-in domestic help for Mrs Okedina. She’d been bought to the UK from Malawi by Mrs Okedina who’d obtained a six-month visa for her. Ms Chikale however continued to work for Mrs Okedina after her visa had expired, that fact having been hidden from her by Mrs Okedina. She had to work very long hours and was paid a pittance. When she was summarily dismissed, she bought various tribunal claims, among them ones for unfair dismissal and unlawful deduction from wages. Mrs Okedina argued that her claims could not be heard because Ms Chikale was working illegally, her leave to remain having expired. Both the employment tribunal and EAT rejected this illegality defence and Mrs Okedina appealed to the Court of Appeal.
Court of Appeal decision
The appeal was dismissed.
As to statutory illegality, the issue was whether s. 15 and 21 of the Immigration, Asylum and Nationality Act 2006 precluded an employee from pursuing contractual claims (or ones arising out of a contract of employment) where those claims arose at a time when the employee’s leave to remain had expired.
Did Parliament intend when enacting these provisions to provide that a contract concluded with a person without the relevant immigration status should be unenforceable? No said the Court of Appeal as this would effectively deprive an innocent employee of all contractual remedies against their employer. The legislation was not directed at those working illegally but instead imposed penalties on those who employed people who were. As the tribunal had found that Ms Chikale had not knowingly participated in any illegality, there was no reason to deny her a remedy.
As to common law illegality, Ms Chikale had not knowingly participated in the illegal performance of her contract and as such her contract was not rendered unenforceable.
Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1393.html
It is likely to be an exceptional case where the employee does not know that they are working illegally in the UK, although it might be that, as in this case, they are lied to by their employers about their immigration status, particularly now with the requirement for employers to sponsor employees. This case brings a common sense approach to protect those vulnerable employees from poor treatment.