11 September 2019

Court of Appeal confirms employment rights for migrants working illegally

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The Court of Appeal in the recent case of Okedina v Chikale [2019] EWCA Civ 1393 has ruled that people working illegally still have employment rights.

Ms Okedina arranged for Ms Chikale to move to the UK under the domestic worker route. Ms Chikale was granted leave under the same category. Ms Okedina failed to renew the Ms Chikale’s visa and did not inform her of the same. The relationship broke down and Ms Chikale demanded compensation under different employment law breaches, including unfair and wrongful dismissal, race discrimination and unlawful deductions from wages.

Ms Okedina’s took the position that Ms Chikale was not entitled to any of this as she had been working in breach of UK immigration laws — without a valid leave to remain / work in the UK. This argument failed and Lord Justice Underhill at paragraph 48 of the decision concluded:

some aspects of the relevant rules are complicated or unclear, and wrong advice can be given, sometimes by the Home Office itself. In short, not all cases of illegal working involve culpability on the part of the employee.

This indeed is an unusual case that overlaps employment law with immigration law. But it does confirm that lacking immigration status does not mean that an employment contract is unenforceable.

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Qazi Muhammad Atif Ali

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