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.

Beginning by briefly defining the illegality doctrine in part 1, one will then concentrate on explaining how the doctrine has affected irregular migrant workers attempting to claim their employment rights in part 2. First, it will consider how the doctrine has completely prohibited irregular migrant workers from making contractual claims for labour rights and secondly, it will analyse how the doctrine has severely restricted the possibility of making tortious claims, specifically discriminatory claims.

Finally, this series will make three recommendations regarding how to reform the current application of the doctrine and better support irregular migrant workers wanting to claim their employment rights. The first relates solely to resolving the contractual claim prohibition, suggesting there is a consideration of circumstances of each case to be made, rather than merely applying the automatic trigger currently dictating the doctrine. The second concerns reforming the approach to tortious claims by properly applying the criteria suggested in Hall, removing the currently distorted approach taken in Vakante and Hounga.

The third recommendation will be that the UK ratifies the United Nation’s International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (referred to as the “Migrant Worker’s Convention”), which will resolve the current problems with the application of the doctrine, and better protect irregular migrant workers.

Definition of the Doctrine of Illegality

The illegality doctrine represents the most fundamental obstacle irregular migrant workers face when claiming contractual employment rights they may be entitled to. It has been defined in a number of ways, but essentially it is taken from the maxim ex turpi causa non oritur actio, which means “no action can arise from a bad cause”. This is applied so people cannot pursue any claims connected to their own criminality. According to Hall, the leading authority on the doctrine in relation to irregular migrant workers; in two types of case it is well-established that illegality renders a contract unenforceable from the outset…one is where the contract is entered into with the intention of committing an illegal act; the other is where the contract is expressly or implicitly prohibited by statute.

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