The Employment Appeal Tribunal (EAT) has held in Okedina v Chikale that even if someone is working in breach of immigration law, that does not automatically mean that their contract of employment is illegal. This is because the immigration rules only apply to the sanctions that employers face if they knowingly breach them when employing someone.
Ms Chikale, who had worked for Ms Okedina in Malawi as a carer for her parents since 2010, accompanied her to the UK in July 2013 to live and work as a domestic servant on a six-month visa.
In November 2013 Ms Okedina applied, relying on false information, for an EEA family permit for Ms Chikale in order to regularise her position in the UK. This was refused, as was the appeal against the refusal. In the meantime, Ms Chikale, who relied on Ms Okedina to take care of her visa situation, was unaware that she was now in breach of immigration rules.
After being summarily dismissed in June 2015, Ms Chikale brought claims for unfair and wrongful dismissal, breach of contract and unauthorised deductions, breach of the Working Time Regulations 2006 and failure to provide written particulars of employment and an itemised wage slip. Ms Okedina resisted the claims on the basis that the employment contract on which Ms Chikale was relying was illegal as it was in breach of immigration law.
Relying on the Court of Appeal decision in Hall v Woolston Hall Leisure Ltd (in which it was held that illegal performance of a contract may mean it cannot be enforced by a party who knowingly participated in the illegal performance), the tribunal held that there was nothing inherently illegal about the contract of employment as it was lawful when both parties entered into it.
The question, therefore, was whether there was any illegality in the way in which it had been performed; and whether Ms Chikale had knowingly participated in that illegal performance. Although technically the contract had been illegally performed after November 2013, the tribunal held that Ms Chikale had not participated in that illegality as she had been unaware that the application to regularise her situation had been refused.
Ms Okedina appealed on the basis that, as the contract was prohibited by immigration rules, it was unlawful from the outset.
The EAT rejected the appeal, holding firstly that the contract of employment under which Ms Chikale had worked for Ms Okedina in Malawi had not been illegal at inception, the contract having been entered into in 2010. Secondly, even if they had entered into a new contract in 2013 on arrival in the UK it was not prohibited from the outset as the contract was for a period of six months and terminable on six weeks’ notice. As such, it was not in breach of the immigration rules when it was entered into.
In any event, the immigration rules on which Ms Okedina relied did not say anything about the impact of breaching a contract under which an employee continued to work beyond the expiry of their leave to remain. They only stated that, if the employer knowingly breached immigration rules when employing someone, they would face criminal sanctions.
Finally, the EAT held that although courts should have regard to the broader purpose of the immigration rules (including Ms Chikale’s potential breach of those rules), public policy considerations had to be brought into play in a way that was consistent with the decision in Hall. In other words, courts should ensure that employers should not be able to rely on illegal performance of a contract, having knowingly participated in that illegality.