Okedina v Chikale [2019] EWCA Civ 1393

Appeal against the EAT’s decision confirming that the Appellant could not raise a defence of illegality in relation to the Claimant’s contractual claims. Appeal dismissed.

The Claimant was employed by the Appellant in Malawi to look after her parents. They both then came to the UK and the Claimant continued to work directly as a domestic worker for the Appellant. However, the Claimant's immigration status meant that after six months it was in breach of Immigration Rules for her to continue working. She was dismissed and brought claims against the Appellant, the Appellant arguing that, as the contract of employment was tainted by illegality, the Claimant was not entitled to bring the claims. The ET disagreed, and the EAT found that the ET had not erred in its approach to illegality in this case. The Appellant appealed against the EAT decision on the question whether "the effect of sections 15 and 21 of the [Immigration Asylum and Nationality Act 2006] precludes an employee from pursuing contractual claims or claims arising out of a contract of employment where those claims arise at a time when the employee's leave to remain has expired".

The Court of Appeal reviewed the two kinds of illegality – statutory and common law – and determined that common law illegality did not apply in this case on account of the Claimant's lack of knowledge: unusually for the employment context, it was the Appellant who concealed from the Claimant the fact that her visa had not been extended. In relation to statutory illegality, the Court held that sections 15 and/or 21 of the 2006 Act could not be read as impliedly prohibiting contracts of employment, in the sense of rendering them unenforceable by either party, where the employee did not have the requisite immigration status.


Published: 02/08/2019 13:39

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