Illegal Contracts and Immigration
It is well established that a contract of employment can be terminated by reason of illegality and one of the most common examples of this is when an employee is not actually entitled to work in the United Kingdom.
In which case, what rights does an illegal immigrant have to prevent them from being exploited by those who have employed them, fully in the knowledge that they were not entitled to work here? The answer to this is not many.
In the recent case of Zarkasi v Anindita & Meng Tse Tan the Claimant met one of the Respondents in her home country of Indonesia. The Claimant was promised a higher salary and better living conditions if she came to work as a housekeeper for the Respondents in the UK. To get around the fact that the Claimant was not actually allowed to work in the UK, the parties agreed to use a false identity to obtain an identity card, passport and tourist visa.
As is so often the case, when the Claimant arrived in the UK, the position was not quite as rosy as had been promised. In fact, she initially worked for just £120 per month in her first year, rising to a princely £150 in her last month of employment, and was made to sleep on the Respondents’ sofa.
The Claimant brought claims for, amongst other things, unfair dismissal, failure to pay the minimum wage and race discrimination.
The Tribunal found that the Claimant’s contract was illegal when entered into as the Claimant was not entitled to enter the UK, she was fully aware that she was not entitled to enter the UK and was not brought to the UK against her will. Consequently, the Tribunal would not allow her to pursue any claims which relied on the existence of a contract (which could not exist as it was illegal) so the Claimant had no recourse in respect of unfair dismissal or failure to pay national minimum wage.
In relation the claim of race discrimination, the Claimant claimed she had been treated badly because she was from Indonesia. The Tribunal, in contrast, found that a proper comparator would be an illegal immigrant from a foreign country other than Indonesia. As a result, her claim was doomed to failure as it is likely that the Respondents would have treated any illegal immigrant in a similarly poor way; their treatment would not be reserved for immigrants specifically from Indonesia.
Whilst the outcome of this case may appear manifestly unfair to a person who has been exploited since her arrival in the UK, it is, in our view, the right decision: no court should provide assistance to someone who is bringing a claim based on their own illegal act, even if the treatment they received was wholly undeserved.