In the recent Court of Appeal case of Okedina v Chikale, it has been confirmed that, in certain circumstances, a contract of employment can still be enforceable where there has been a breach of immigration rules.
Mrs Okedina and Ms Chikale are both Malawian nationals. Mrs Okedina and her husband have lived in the UK for some time but had brought Ms Chikale to the UK to work as a live-in domestic worker in July 2013.
Ms Chikale was granted a six-month visa further to Mrs Okedina having applied for a visa on her behalf, based on false information.
When the six-month visa expired, Mrs Okedina kept Ms Chikale’s passport and told her that she would arrange for an extension. Ms Chikale, therefore, remained in the UK and continued working for Mrs Okedina.
Mrs Okedina’s false application for an extension, forging Ms Chikale’s signature, was refused, as was an appeal, of which Ms Chikale was unaware.
Throughout her employment, Ms Chikale was required to work seven days a week, for very long hours, and was paid only £3,300. Ms Chikale was summarily dismissed and evicted from the house in June 2015, after she requested more money.
Ms Chikale pursued a number of employment tribunal claims including unfair dismissal, unpaid holiday and unlawful deductions from wages. Mrs Okedina attempted to rely on the ‘illegality defence’ on the basis that Ms Chikale’s contract of employment was unenforceable because it was either illegal or illegally performed since November 2013.
However, judgment was given in Ms Chikale’s favour at both employment tribunal and Employment Appeal Tribunal level. Mrs Okedina, therefore, appealed to the Court of Appeal but was unsuccessful.
The Court of Appeal noted that there are two forms of illegality that may have resulted in the contract being unenforceable:
1) statutory illegality
2) common law illegality.
The Court considered whether Ms Chikale’s contract was unenforceable because her employment was in breach of the Immigration, Asylum and Nationality Act 2006 (“The Act”). Given that The Act does not prohibit a person from employing someone in breach of immigration restrictions, but provides for civil and criminal penalties to be imposed instead, the Court concluded that an innocent employee without the appropriate immigration status should not be deprived of their ability to claim.
Common law illegality
The Court decided that Ms Chikale did not knowingly participate in the illegal performance of her contract in view of the fact that she relied on Mrs Okedina to deal with her visa situation, that Mrs Okedina used false information, that Ms Chikale did not sign the false extension application form and that Mrs Okedina kept Ms Chikale away from the immigration appeal hearing. The contract therefore could not be rendered unenforceable at common law.
This claim was very specific to the facts eg the innocence of Ms Chikale in the circumstances, which may not always be the case. However, there are additional situations in which a person may not be aware that they are working illegally, such as employees of large companies which take responsibility for obtaining the necessary permissions for foreign employees or victims of trafficking.
Dionne Dury is a Norwich Employment Solicitor. For advice or to arrange an initial meeting, call 01603 660 811 or email firstname.lastname@example.org