Illegal Working does not always equal a defence of illegality.


Based on the particular facts of Okedina v Chikale, the Court of Appeal held that whether the defence of illegality can be relied upon will require a case-by case assessment of the public interest. In this case, the employers (O) brought the employee (C) to the UK to work for them as a live-in domestic worker. O took possession of C's passport and informed C that they had applied to the Home Office to extend C's existing visa, so C left matters entirely in O's hands. O did extend C's application but forged C's signature and provided false information that C was O's family member. The extension application was refused and an appeal was lodged without C's knowledge. C's appeal was dismissed in January 2015 rendering her with no legal status to remain in the UK.

C continued to work for very long hours, 7 days a week and was paid roughly £3,300 from July 2013 to June 2015 when she was dismissed. C was dismissed by O after C asked for more money. C then brought proceedings in the Employment Tribunal against O complaining of unfair and wrongful dismissal, unlawful deductions from wages, unpaid holiday pay, breaches of the Working Time Regulations 1998, failure to provide written particulars and itemised payslips, and race discrimination. C was awarded £72,271.20.

The key issue was whether the fact that C's immigration status (or lack of) rendered her contract unenforceable. The Court of Appeal analysed and distinguished existing authorities dealing with the defence of illegality. The existing authorities endorsed the  approach of "knowledge plus participation", where the defence of illegality may be successfully relied upon and render a contract unenforceable. However, none of the existing case-law had similar facts; i.e. where the employee was not aware of their immigration status but the employer was. In light of this, the Court of Appeal unanimously agreed that the contract was enforceable.

This case is important in reinforcing the importance of 'awareness' of immigration status. In this example, the Court of Appeal have protected the rights of an individual who was perceived as "vulnerable" due to a lack of awareness of their rights to remain in the UK; it reinforced the legal standpoint that employers cannot benefit from the exploitation of individuals who are in a precarious position. Conversely, individuals who have knowingly worked in breach of immigration rules are unlikely to succeed with such a claim.

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Although typically a person who is working illegally will know that they are doing so, that will not always be the case, as the facts of the present case illustrate. Most obviously, there is a well-recognised problem of vulnerable foreign nationals being brought to this country for exploitation of various kinds: usually, though this is not of the essence, they will be victims of trafficking within the meaning of the Anti-Trafficking Convention. Sometimes they will know that their presence and/or their employment is illegitimate, but sometimes they will be told, and believe, that it is legitimate when it is not.