The doctrine of illegality and its disproportionate effects on irregular migrant workers

PART III

Recommended reforms to the Doctrine of Illegality

This chapter provides three routes to reforming the unsatisfactory application of the doctrine, suggesting ratification of the Migrant Worker’s Convention as the best solution to the issues discussed above.

Reforming the Doctrine’s Application to Contractual Claims

Lord Sumption (2012: 17) justifies the illegality doctrine on the grounds of consistency; to apply the illegality doctrine is to ensure consistency in application of the law, with the criminal law prohibiting the conduct of the claimant. Continue reading

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The doctrine of illegality and its disproportionate effects on irregular migrant workers

PART II

The Doctrine of Illegality and Contractual Claims

The Doctrine’s Application to Contractual Claims

If a contract of employment is illegal ab initio due to prohibition by statute, the doctrine is automatically triggered and no contractual claim can be made. This application of the doctrine poses a significant threat to irregular migrant workers, as their presence in the UK is illegal ab initio. For example, in Zarkasi v Anandita, a young Indonesian female entered the UK illegally using a false passport. The Employment Appeal Tribunal held she was not allowed to make a contractual claim, as “a court should not as a matter of public policy permit any party to enforce a contract that was and always has been illegal”. Continue reading

The doctrine of illegality and its disproportionate effects on irregular migrant workers

PART I

Introduction

Irregular migrant workers (or illegal immigrants) are considered to be disproportionately affected by the lack of respect for labour rights, whilst working in the more underprivileged sectors. This series intends to prove the fundamental reason these workers struggle to claim their labour rights in the UK, is due to the judiciary’s application of the doctrine of illegality; developed nearly 250 years ago in Holman v Johnson. As Bogg (2013: 119) states, “it is no exaggeration to characterise the current rules as shameful in their impact on some of the most vulnerable workers in the UK today. It is also no exaggeration to say that this draconian legal position brings the English legal system into disrepute”, and one suggests legal reform is required. Continue reading