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. Nonetheless, this post argues, due to the vulnerabilities irregular migrant workers in the UK are exposed to in the application of the automatic bar to their contractual claims for employment rights by the doctrine, an exception to this consistency is required. One suggests, similarly to Bogg (2013: 137-8), that the court should refrain from applying the illegality doctrine automatically. Instead the court should consider the proportionality of barring claims, and whether it can be said to serve justice if it prohibits the irregular migrant worker from their contractual claim for basic labour rights. Although it is accepted that an irregular migrant worker’s presence in the UK should be condemned and punished, allowing employers unjust enrichment due to these circumstances is extremely unsatisfactory. If such a recommendation was undertaken in the judiciary’s approach, one suggests that justice could be served in a satisfactory manner. Although existing law can be applied to punish irregular migrants for residing and working in the UK without authorisation, we can also ensure that employers respect the fundamental employment rights which legislation is supposed to protect, ensuring workers; whether legal or illegal have an available avenue of redress in light of any exploitative behaviour they may be subject to.

Reforming the Doctrine’s Application to Tortious Claims

This post identifies two ways to remove the restrictions left by the distorted approach of Vakante and Hounga in relation to discrimination claims.

Firstly, one suggests the court’s could simply move away from the threshold used in Vakante and Hounga, and return to the criteria set in Hall, requiring necessary causation between the claimant’s criminal act and the tortious discrimination suffered. This post suggests such criteria will rightfully allow irregular migrant workers being subject to discrimination to pursue a claim under the tort, yet this test will not allow everyone to pursue such a claim, for example where the claim is so “inextricably bound up… with the illegal conduct of the applicant” (Hall per Gibson L.J. para 42), and therefore open it to all claimants.

An alternative method would be to ratify Protocol 12 of the European Convention on Human Rights (ECHR) in the UK. There is undoubtedly a “growing recognition of the importance of respect for human rights” (Allen QC et al, 2007: 6), and one of the biggest representatives of that in the UK in recent history has been the passing of the Human Rights Act 1998, which introduced “a very strong requirement on courts [and] tribunals… to act compatibly with key Convention rights” (ibid, 2007: 7), including the Article 14 prohibition of discrimination. However, this Article in particular is not freestanding, in the sense that it only prohibits discrimination in relation to “the enjoyment of the rights and freedoms set forth in [the] Convention” (ibid). This led to calls for “the Council of Europe to agree a freestanding non-discrimination right” (Allen QC et al, 2007: 357), so it introduced Protocol 12 ECHR; which provides a freestanding non-discriminatory right. The UK is yet to ratify the Protocol, seeing it as too wide, however one argues Protocol 12 ECHR could force the courts to re-think their position in Hounga, if they do not want to voluntarily do so as suggested above. Protocol 12 ECHR could allow people, such as irregular migrant workers, to claim for tortious discrimination if there is no inextricable link between their illegality and the discrimination they have suffered, and force the courts to consider the importance of anti-discrimination in employment law.

Ratification of the Migrant Worker’s Convention

Similarly to Protocol 12 ECHR forcing the courts to reform their application, the final recommended amendment to the application of the illegality doctrine to irregular migrant workers would be to ratify the Migrant Worker’s Convention. This section will prove how this should be considered as the most fundamental recommendation, as it has the potential to improve the current structure regarding irregular migrant worker’s claims; both in contract and in tort, by forcing the domestic courts to reconsider their current approach to the doctrine of illegality, providing an alternative to amending each of the restrictions individually and voluntarily.

The [Migrant Worker’s Convention] is a comprehensive instrument that covers the entire migration process (Touzenis & Sironi, 2013: 6), adopted by the UN General Assembly in 1990. According to De Varennes, it provides “the most significant attempt to develop an international regime for migrant workers” (De Varennes, 2002: 14), which is why this post has chosen this as the best choice of international convention when recommending ratification.

Nevertheless, the Migrant Worker’s Convention has “not received a high level of support” (ibid, 2002: 15) since being adopted in 1990, and the UK is yet to ratify it. De Guchteneire et al (2009: 284) referenced one of the fundamental reasons for the lack of ratification as the belief that “the rights of migrant workers are already protected in UK legislation and the UK’s existing commitments under international law, including the Human Rights Act 1998”.

However, one argues, referencing the evidence given above, that this reasoning is unfounded in relation to irregular migrants and that the Migrant Worker’s Convention should be ratified, “guaranteeing equality of treatment, and the same working conditions for migrants and nationals” (UNESCO, 2005: 7) and forcing a reform of the current approach to the illegality doctrine in the following ways.

Firstly, with regards to reforming the doctrine’s application to contractual claims for basic labour rights, Article 25 (Part III) of the Migrant Worker’s Convention provides migrant workers are to be treated as equal to the nationals of the host country in respect of remuneration and conditions of work [overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of work contract, minimum age, restrictions on home work etc.].

The implementation of these articles would stop irregular migrant worker’s being barred from claiming things such as remuneration for any omission of pay below that defined as the national minimum wage for example. This post argues that ratification would bring a number of policy considerations regarding the treatment of irregular migrant workers under the doctrine of illegality to the forefront of court’s thinking. Ratification would infer electoral acceptance of the fact that migrant workers, both legal and illegal, are deserving of basic labour rights, yet the current application of the illegality doctrine by the judiciary would contradict that. Therefore, ratification could provide strong enough evidence for the courts to alter the current approach voluntarily, or they would be forced to in light of interpreting the application of the doctrine in line with the Convention, hopefully leading to irregular migrant workers having a minimum standard of labour rights set, regardless of their presence in the UK being legal or not. This equal application of labour rights to all workers in the UK would bring an end to the currently abusive and lawless system employers are allowed to exploit irregular migrant workers within, in relation to contractual claims.

Secondly, when considering the limits the doctrine places on tortious claims of discrimination, one can look to Article 7 of the Migrant Worker’s Convention which expressly provides:

State parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction”.

Similarly to Article 14 Human Rights Act 1998, Article 7 is not freestanding, only applying to the Migrant Worker’s Convention rights. Nonetheless, this does not create the same problems in relation to irregular migrant workers being discriminated against in employment, because the Migrant Worker’s Convention expressly provides for the labour rights discussed above in Article 25 (ibid) and Article 7 applies to these. Therefore, ratification means state parties have to protect irregular migrant workers from discrimination in relation to these rights.

One argues this would result in a similar result to the protection of irregular migrant workers contractual claims when affecting the doctrine of illegality and that ratification would stop the courts from applying the current distorted Hall criteria as they have in Vakante and Hounga, allowing parties like Ms Hounga to have an avenue of redress for discrimination claims in the court regardless of their irregular situation, in essence removing the currently hypocritical approach of the court, which stops many irregular migrant workers claiming for discrimination due to the loosening of the test, in turn discriminating against them in reality, as they are more restricted in respect of tortious claims being made.

Conclusion

The current application of the illegality doctrine by the UK judiciary represents an already exacerbated restriction on irregular migrant workers, as shown in the complete bar on any contractual claim where there is illegality ab initio, and also in relation to the warped application of the Hall criterion to tortious claims for discrimination. Seemingly, the judiciary have decided that the doctrine deserves priority over the basic rights of employees and the battle against discrimination at work.

Such a position seems to be at odds with the rapid advancements made by the legislature in attempting to stop employers from abusing their staff, by introducing a national minimum wage and maximum working hours, as well as the position taken by the executive in relation to the importance of fighting discrimination, leaving open questions as to the legitimacy of such a position in relation to the constitutional balance of power between the three branches of the sovereign. Despite this, the judiciary continue to apply a tough stance, even seemingly extinguishing any signs of a reformed approach in Vakante and Hounga.

This post has argued that such a stance is problematic, as it is allowing employers to exploit irregular migrant workers, who are being left in an extremely vulnerable position by the public body which is supposed to ensure justice in the UK. As Clark states:

The pretence that downward pressure on pay and conditions can be resolved by limiting the number of migrant workers is both dishonest and dangerous – for all workers. It diverts attention away from the real villains of the piece: exploitative employers and the economic and legal system that rewards and protects them” (Ryan, 2013: 97).

Ratification of the Migrant Worker’s Convention would force the judiciary to truly and fairly consider the current abusive system applied to irregular migrant workers in the UK, hopefully resulting in them being able to claim their basic employment rights and in relation to discrimination, stopping employers from justifying discriminatory behaviour so easily, with the positive effect of offering irregular migrant workers basic protections in the UK employment sector.

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