Immigration lawyers often find themselves at the centre of employment law disputes where the employee’s immigration status appears to be crucial to the legality of their employment. 

In such cases the stakes are usually very high and the pressure on all concerned can be huge. Whilst the employee will be fighting to save their job and livelihood, the employer is likely to be concerned about the risk of a civil penalty, the loss of a sponsor licence — which may place many other jobs at risk — and reputational risks.

Criminal sanctions can even come into play for both sides if there is knowledge that a person does not have the requisite immigration permission to work.

But whilst the Home Office may adopt the blunt position that no leave means no lawful employment — and many immigration lawyers would by gut instinct take the same approach — the Court of Appeal has recently said otherwise.

The case of Okedina v Chikale [2019] EWCA Civ 1393 had been making its way through the courts for some time. In 2013, Ms Okedina arranged for Ms Chikale to move to the UK as her live-in domestic worker and organised her UK visa.

To cut a long story short, Ms Okedina failed to renew the visa and failed to let Ms Chikale know that. Eventually the relationship broke down and Ms Chikale claimed compensation in respect of various employment law breaches, including unfair and wrongful dismissal, race discrimination and unlawful deductions from wages.

Ms Okedina’s position was that Ms Chikale was not entitled to any of this because she had been working in breach of UK immigration laws — the “illegality defence”.

This argument failed in the Employment Tribunal, the Employment Appeal Tribunal and, most recently, in the Court of Appeal. Lord Justice Underhill noted that there was no public policy reason why the relevant legislation should interpreted to support Ms Okedina, pointing out that genuine mistakes over imigration status are not necessarily unreasonable:

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 case was pretty unusual. Not only was Ms Chikale oblivious to the fact that she was working without immigration permission but it was alleged that Ms Okedina had submitted false information in the documents she had prepared for Ms Chikale and had forged her signature. 

Abnormal as the case may be, what it shows is that the overlap between immigration law and employment law is in no way clear cut. Lacking immigration status does not mean that an employment contract is unenforceable.

Whilst immigration experts will usually be well equipped to provide advice on factual points — if a person has leave, whether they have protection under Section 3C or not (and to educate all parties on what that means), etc — it is important to avoid making statements on the legality of the contract of employment (unless you happen to be an expert on employment law also).