Immigration status and employment rights: right to work
Stephanie Harrison KC and David Renton set out what employment practitioners need to know about the right to work and why.
‘Need to know’ is a regular series where leading practitioners set out the key legal knowledge lawyers need to know about an area of law outside their immediate specialism.
It is now an entrenched part of an employer’s practice in the recruitment and retention of staff that they must establish the applicant’s legal right to work to avoid draconian civil and/or criminal penalties (Immigration, Asylum and Nationality Act (IANA) 2006 ss15(1) and 21(1)–(1B) respectively).
1The maximum civil penalty is now £60,000 (Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2024 SI No 82 article 2). The maximum criminal penalty is five years’ imprisonment and/or an unlimited fine (IANA 2006 s21(2)). Employers play a key role in the enforcement of the hostile environment (now rebranded as the compliant environment), with employers undertaking immigration status checks before and after recruitment. Although such checks may be necessary to avoid liability for such penalties (IANA 2006 s15(3)), they must also be carried out in a manner and form that is lawful, fair and, crucially, does not discriminate contrary to Equality Act (EA) 2010 s39
2Section 39(1) states: ‘An employer (A) must not discriminate against a person (B) – (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment. Section 39(2) states: ‘An employer (A) must not discriminate against an employee of A’s (B) – (a) as to B’s terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.’ directly (s13) or indirectly (s19) on grounds of race, whether colour, nationality, or ethnic or national origins (s9).
•rejecting all job applicants because they do not have British nationality or another specified nationality;
•refusing to consider any non-British/Irish job applicants;
•intentionally recruiting from one nationality or ethnic group;
•not interviewing someone from a certain nationality or ethnic group because it is assumed that they will not have the right to work in the UK; and
•carrying out right to work checks for a Black employee but not for their White colleague (2022 code, pages 6–7).
The 2022 code, therefore, requires employers to:
be consistent in how they conduct right to work checks on all prospective employees, including British citizens;
ensure job selections are made on the basis of suitability for the post;
check the status not only of those who appear to the employer likely to be migrants;
not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent, surname or the length of time they have been resident in the UK.
Important cases
Osborn Clarke Services v Purohit
There is limited authority on the interaction between the employer’s duty to enforce immigration rules and the risk of discrimination, but in
Osborne Clarke Services v Purohit UKEAT/0305/08; June 2009
Legal Action 35, the employment tribunal (ET) made a finding of indirect discrimination in a case where a law firm had a policy of rejecting applications for a training contract from candidates who required a work permit. The application process had a preliminary filter question of whether the applicant had a work permit to work in the UK. By answering no, the applicant was told he did not meet the entry requirements. The ET held that this could not be justified. The Employment Appeal Tribunal (EAT) agreed and the appeal was dismissed. The
Code of practice on racial equality and employment then in place made it clear that, as far as possible, selection should be based on merit and work permit issues should only come into consideration at a later stage of selection.
The 2022 code does not make specific mention of when right to work checks are to be conducted. However, the findings in Purohit reflect the guidance in the 2022 code on how to avoid race discrimination and strongly support the proposition that proof of the right to work should be treated not as a prior exclusionary condition of the application, but as an ancillary formality (albeit an obviously important one).
Employers should not distinguish between applicants or employees, and favour them because of the particular form of legal immigration status they have. To do so may discriminate directly on grounds of nationality or indirectly on grounds of national origin and/or ethnicity and/or colour, given that those who are not British or Irish citizens are more likely to be from racialised minority groups. Right to work checks must be conducted consistently on all prospective employees at the same stage of the recruitment process, irrespective of the manner and time it takes to conduct such checks (unless there is a genuine case for urgency). No assumptions should be made about who requires proof of the right to work. Any inconsistent application of such checks could lead to a discrimination contrary to the EA 2010.
R (RAMFEL and Adeji) v Secretary of State for the Home Department
The Windrush scandal exposed the gravity of the risks of the hostile environment measures if proof of lawful immigration status is not readily available.
5See Windrush Lessons Learned Review: independent review by Wendy Williams (HC 93, Home Office, March 2020) and Windrush Lessons Learned Review: progress update (Home Office, March 2022. In
R (Refugee and Migrant Forum of Essex and London (‘RAMFEL’) and Adeji) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin), the High Court ruled that the Home Office’s failure to provide documentary proof of status for those with limited leave to remain statutorily extended under Immigration Act 1971 s3C was irrational. Central to the ruling was the hardship entailed by being wrongly exposed to the hostile environment of which employer checks and sanctions were a key component. On two occasions, Ms Adjei had been suspended from her employment as a social care worker pending immigration status checks with the Home Office, causing her and her child serious hardship.
Employers must have regard to the 2022 code (page 12), which states in terms that they ‘must not discriminate against any individual based upon the type of right to work check carried out … Job applicants should not be treated more or less favourably if they have an eVisa.’ Employers who ignore the 2022 code clearly risk acting unlawfully and having discrimination claims brought against them.
Consequences of no right to work
Those without a lawful immigration status and the right to work still have employment rights that they can enforce.
Wages
Where an employee lacks the right to work, can they still bring a claim to the ET? The leading case on unlawful deduction of wages is
Okedina v Chikale [2019] EWCA Civ 1393; March 2020
Legal Action 17. It concerned an employee, Ms Chikale, brought to the UK as a live-in domestic worker, who gave her passport to the employer, Mrs Okedina, who took responsibility for all immigration applications. She worked for a family for two years for long hours, seven days a week, before she was dismissed. The employee brought a claim for unlawful deduction of wages by reference to the National Minimum Wage Regulations 1999 SI No 584.
Underhill LJ (with whom Davis and Nicola Davies LJJ agreed) held that the primary question in illegality cases is whether the employer relies on a defence of statutory illegality or common law illegality. A contract made contrary to statute will be unenforceable, irrespective of the knowledge or culpability of the party who was prevented from recovering.
Common law illegality arises where the function, purpose or performance of a contract is contrary to public policy. Such a contract might well be unenforceable, but whether it is or not will depend on the court or tribunal ‘(a) considering the underlying purpose of the prohibition which has been transgressed, (b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and (c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality’ (para 12, following the decision in
Patel v Mirza [2016] UKSC 42 at para 101 per Lord Toulson).
6Underhill LJ’s distinction between statutory and common law illegality has since been approved by the Supreme Court in Henderson (a protected party, by her litigation friend, the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43 at para 75.In Okedina, the employer had concealed from the employee the fact that her visa had not been extended. Accordingly, arguments relying on common law illegality failed and the court focused on the key question of whether UK immigration law had the effect of nullifying a contract in the circumstances where the employee lacked leave to remain.
IANA 2006 s15(1) provides that:
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) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment.
The remainder of the section provides for a system of civil penalties for breaches of that provision.
IANA 2006 s21(1) provides that:
A person commits an offence if he employs another (‘the employee’) knowing that the employee is disqualified from employment by reason of the employee's immigration status.
Neither provision expressly made all such contracts void, and therefore the issue became whether it was necessary to imply such a provision into the statute. The court held that it was not necessary; rather, it was proper to protect the employment rights of migrants, including in cases where they were unaware of the illegality or they had been brought to the UK contrary to the
Council of Europe Convention on Action against Trafficking in Human Beings.
Unfair dismissal
In unfair dismissal cases, those representing or advising employees should consider the following statutory provisions. Employment Rights Act (ERA) 1996 s98(2)(d) provides that it will be a fair reason for dismissal ‘that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment’.
This provision has been interpreted as meaning that an employee who lacks the right to work, in consequence of immigration legislation, must fail in a claim for unfair dismissal. But to succeed in this defence, the employer must show an actual breach of immigration legislation – a mere belief that there is illegality is insufficient to satisfy the provision.
Where an employer actually, but wrongly, believes that an employee lacks the right to work, the key statutory provision is ERA 1996 s98(1)(b), under which the fair reasons for dismissal also include ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’.
In
Klusova v Hounslow LBC [2007] EWCA Civ 1127, the courts considered an employee, Ms Klusova, who was arrested and put in a detention centre before being released and making a valid application to extend her existing leave to remain. Mummery LJ (with whom Laws and Moore-Bick LJJ agreed) held that there was no illegality preventing the council from keeping Ms Klusova in employment; however, it had genuinely believed that she could not continue in employment. In principle, the employer’s ERA 1996 s98(1)(b) defence was capable of defeating the employee’s claim for unfair dismissal, although the latter succeeded on other grounds (it won automatically under the old rules which then applied following a failure to follow dismissal procedures).
The same approach was also followed by the EAT where an employer received advice from the Home Office first that a nurse did not, and then that she did, have the right to work (
Ssekisonge v Barts Health NHS Trust UKEAT/0133/16/LA).
Discrimination
Historically, the courts have taken a more permissive approach to employees’ claims for discrimination in relation to contracts that were illegal, in contrast to claims for unfair dismissal or unlawful deduction of wages, reflecting the reality that a discrimination claim is principally a claim for a statutory tort and not, in origin, a claim for breach of contract.
The correct approach for the ET is to consider whether the applicant’s claim arises out of or is so clearly connected or inextricably bound up or linked with their illegal conduct that the tribunal could not permit them to recover compensation without appearing to condone that conduct (
Hall v Woolston Hall Leisure Ltd [2001] 1 WLR 225). If an employee merely acquiesced in an illegal act and did not initiate it then, ordinarily, that would not prevent them from bringing a discrimination claim.
In
Hounga v Allen and another [2014] UKSC 47; March 2015
Legal Action 25, the Supreme Court considered the situation of Miss Hounga, a Nigerian immigrant who had been 14 years old when she knowingly participated in an application for a visitor’s visa obtained under a false identity. In England, she had been subject to violence from her employer, Mrs Allen. The ET found that she was ultimately dismissed because of vulnerability caused by her insecure immigration status. In a finely balanced judgment, the Supreme Court ultimately held that there had been no close connection between the immigration offences and the acts of discrimination, the former having merely provided the setting in which the employer discriminated against her, and she was able to bring and succeed in her discrimination claim. The decision has been cited with approval in a number of cases since, including by the Supreme Court in
Basfar v Wong [2022] UKSC 20.