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5th February 2018

Illegality in the context of employment contracts – breach of immigration law


5th February 2018

Illegality in the context of employment contracts – breach of immigration law

In the recent Employment Appeal Tribunal (EAT) case of Okedina v Chikale, an employer who had brought a domestic worker over from Malawi sought to argue that the worker could not bring employment claims because her employment contract was illegal (i.e. in breach of immigration law).

Ms Chikale was brought to the UK under a “Domestic Workers in a Private Household” visa. Such a visa provides that the worker is entitled to work in the UK for six months only and this time period cannot be extended under any circumstances. Ms Chikale continued to work for her employer until she was summarily dismissed, just over two years after her arrival in the UK. Ms Chikale brought a number of employment claims, including unfair dismissal.
The employer sought to defend the claims on the basis that Ms Chikale was not entitled to bring them given that her employment contract was illegal, being in breach of immigration law. This was on the basis that she had stayed in the UK for more than the six month period allowed under her visa.

At first instance, the Employment Tribunal held that the case fell within the third category of illegality under Hall v Woolston Hall Leisure Limited, i.e. where a contract, lawful when made, is illegally performed and the party knowingly participated in that illegal performance. In this case, the Tribunal rejected the employer’s argument, finding that Ms Chikale did not knowingly participate in the illegality. Importantly, Ms Chikale had trusted her employer, who had assured her that her visa had been taken care of.

The employer appealed on the basis that the employment contract to work in the UK was unlawful when it was formed (the second category of illegality under Hall).

The EAT dismissed the employer’s appeal. It held that the contract of employment was entered into in Malawi so there could be no suggestion that the contract had been illegal at inception. Even if a new contract of employment had been entered into when Ms Chikale arrived in the UK, the written terms of that contract made it clear that the contract was not illegal at inception either. This was because the employment was terminable on six weeks’ notice and therefore the six month limitation on the length of the visa was not breached from the outset.

Further, the immigration provisions relied upon by the employer (sections 15 and 21 of the Immigration, Asylum and Nationality Act 2006) does not clearly invalidate any contract entered into in the UK. The Act provides for a potential criminal offence by the employer but it is silent in relation to the validity of any contract entered into by that employer.

This is an interesting case which highlights the importance of considering both employment law and immigration law when employing a foreign national. All of the immigration lawyers at Paris Smith are also employment specialists, so should you have any queries in relation to the content of this blog, please contact a member of the immigration team.

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