Thursday, 15 December 2011

'Illegal worker' wins wages claim

Okuoimose v City Facilities Management
Appeal No. UKEAT/0192/11/DA

Where an employer attempted to escape his liability to pay wages on the basis that the contract of employment was illegal.

The claimant, who was a Nigerian woman married to a Spanish national, worked as a cleaner for the respondent. She acquired the right to take up employment in the UK as a family member of a European citizen who had the right of residence in a Member State. Her passport stamp said that her right of residence expired on 8 July 2010, at which date the respondent suspended her without pay because, they alleged, the contract of employment was now illegal.

The claimant initiated applied to renew the permit on her passport. The respondent dismissed the claimant on 20 August on the grounds of illegality.

Later the same day the claimant produced a letter, dated 16 August, from the Border Agency which said that until her application had been decided, she would be treated for immigration purposes as being free to work and live in the UK.

The respondent reinstated the claimant but the claimant went off on sick leave and made a claim that she had suffered unlawful deductions from her pay (contrary to s. 13(1) of the Employment Rights Act 1996) during the suspension period .

Employment Tribunal Judgment

The Employment Tribunal considered the fact that the claimant had not produced evidence which showed her entitlement to work in the UK and also the penalties that could have been imposed on the respondent if they had employed an illegal immigrant, and came to the conclusion that the contract of employment was illegal. The claimant appealed.

The EAT

The EAT accepted the argument of the claimant, who claimed that she had not in fact lost the entitlement to work in the UK simply by reason of her failure to obtain a new stamp in her passport. The claimant had a right to work by reason of her status as a family member of an EU national. This right did not depend upon letters written by the UK Border Agency for she always had the right, irrespective of the expiry of the entry in her passport.

The Employment Judge had erred in that it considered the reasonableness of the employer’s belief that she was not entitled to work, and that it would be exposed to penalties, and these were irrelevant factors.

The Statutory Law

The legislation

5. The legislation arises under treaty obligations. The Claimant's husband is a Spanish national and the Claimant herself is Nigerian, who acquired rights by reason of being a member of Mr Okuoimose's family. The European obligation arises under directive 2004/38/EC, which provides in relevant part as follows:

"Article 23

Related Rights

Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self employment there."

"Article 25

General provisions concerning residence documents

1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents."

6. The Immigration European Economic Area Regulations 2006, seeking to transpose that directive, provide as follows:

"13.— Initial right of residence

(1) […]

(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.

[…]"

"14.— Extended right of residence

(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.

[…]"

"15.— Permanent right of residence

(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b) a family member of an EEA national who is not himself an EEA national butt who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

[…]"

7. Separate from those provisions, which deal essentially with the rights of qualified persons, is the Immigration, Asylum and Nationality Act 2006. It is directed at the consequences of immigration control for employers. Regulation 15 sets up a penalty for employing a person without the relevant entitlement to work:

"15 Penalty

(1) It is contrary to this section to employ an adult subject to immigration control if—

(a) he has not been granted leave to enter or remain in the United Kingdom, or

(b) his leave to enter or remain in the United Kingdom—

(i) […]

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise),

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