Liam Thornton has previously blogged about issues surrounding the enforcement of employment rights by undocumented migrants, particularly in the wake of the 2012 High Court judgment in Hussein v The Labour Court & Anor  IEHC 364. In this decision, Hogan J found that an undocumented migrant employee could not enforce statutory employment rights against his employer, as the contract under which he was employed was “substantively illegal”. As there were a number of developments in this area of law in Ireland and the UK in 2014, it is useful to review the state of the law and assess whether undocumented migrants are in a better position as a result of these developments.
Addressing gaps in protection: the Employment Permits (Amendment) Act 2014
The Employment Permits (Amendment) Act 2014 addresses some of the issues at the heart of the Hussein decision. Section 3 provides for a defence for the employee to the charge of having been employed without an employment permit, where they can show that they took all reasonable steps to ensure compliance with the section. In addition, section 4 permits the foreign national to take a civil claim for compensation against the employer, notwithstanding the illegality of the contract, again where it can be proved that they took all reasonable steps to comply with the requirement to have an employment permit, and provides that the Minister may take such an action on behalf of the employee.
These changes have been welcomed by migrant rights organisations. However, the Act’s approach of providing a “carve-out” for civil, remuneration-related claims taken by undocumented workers, who played no part in the breach of the Employment Permits Act 2003, leaves the basic conceptual framework intact. The contract of employment remains illegal and, most significantly, those employees who do not take “all reasonable steps” to ensure that an employment permit is obtained remain unprotected. The 2014 Act still leaves those who are in some way implicated in the illegality, for whatever reason. unprotected by Irish employment legislation.
Assessing the promise of UK developments: Hounga v Allen
The concept of illegality, relied upon in the Hussein decision, has been considered in the UK in the context of attempts to use equality legislation to obtain a remedy for discrimination resulting from irregular immigration status, even though the statutory tort of race discrimination does not necessarily depend on a valid contract of employment. In Hounga v Allen  UKSC 47 the applicant had accepted the findings of the tribunal and of the EAT that the defence of illegality precluded any claim which might arise under the contract of employment. However, the Court of Appeal had gone one step further and decided that the applicant (a Nigerian “au pair”, described as “a young, illiterate person of uncertain age although with a good command of English”) could not bring a race dismissal discrimination claim as she was working illegally.
Ms Hounga’s dismissal discrimination case relied on the argument that her employers had taken advantage of her illegal status and the fact that she had no right to be employed in the UK to treat her less well than a hypothetical white British comparator, thus, in the view of the Court of Appeal, “making a direct link between the discriminatory treatment of which she complained and the circumstances in which she came to be, and was, employed by the Allens.”
In 2014, the Supreme Court upheld the domestic worker’s appeal. The primary basis for the Supreme Court decision was that, in the particular facts of this case, there was an insufficiently close connection between the appellant’s immigration offences and her claims for the statutory tort of discrimination, meaning that the “inextricable link” between the facts giving rise to the claim and the illegality, required by tort law, had not been established. Her immigration offences merely provided the context within which the tort was committed.
Disagreement in the UK Supreme Court
There was significant disagreement among the members of the Supreme Court as to the precise basis for their unanimous overall finding that the appeal should be upheld. Lord Hughes (with whom Lord Carnwath agreed) was careful to specifically confine his judgment to tort cases, distinguishing the tort claims under consideration from the contractual claims initially made in the employment tribunal and EAT, which would be dependent on a lawful contract of employment.
Lord Wilson (with whom Lord Kerr and Lady Hale agreed), on the other hand, engaged in a more wide-ranging analysis of the public policy dimensions of the doctrine of illegality, finding that “the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Hounga’s complaint scarcely exist”. Lord Wilson placed great importance on his conclusion that Miss Hounga’s case was, effectively, one of trafficking for the purposes of forced labour, bringing it within the scope of the UK’s international obligations in this regard, including Article 4 of the ECHR. He even went so far as to suggest that the public policy considerations involved in trafficking cases could have possibly yielded a different result, had the contractual claims for unfair dismissal and unpaid wages been pursued in the appellate courts.
The approach of Lords Wilson and Kerr and Lady Hale could potentially provide a basis for a more nuanced application of the doctrine of public policy in purely contract-based claims, at least in cases involving trafficking. However, it is difficult to assess if and how this strand of reasoning will develop in future cases, given that Lords Hughes and Carnwath explicitly disagreed with the idea that the law of trafficking provided a specific basis for allowing the appeal. It was also their trenchant view (echoing the comments of earlier courts) that even if one assumed that Miss Hounga was subjected to forced labour, she had not been compelled to commit the relevant immigration offences, meaning that any contract of employment was substantively illegal.
Ultimately, despite the strong statements on trafficking and public policy in Lord Wilson’s judgment, the UK Supreme Court judgment in Hounga is (purposefully) narrow and does not, in the short term, have a real impact on access to justice in the UK for undocumented workers in the context of general employment law claims. Post-Hounga, the defence of illegality will not automatically operate to exclude tort claims related to their employment taken by undocumented migrants in the UK, however, as seen in the case of the Employment Permits (Amendment) Act 2014, the wider legal landscape has been left intact.
In the UK and Ireland, the exclusion of undocumented migrants from employment protections persists, despite recent legislative and jurisprudential developments. This results in state-constructed vulnerability to labour exploitation for this group of workers, with the State complicit in the creation and perpetuation of a decent work deficit for undocumented migrant workers.