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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Okuoimose v City Facilities Management (UK) Ltd (Jurisdictional Points : Fraud and illegality) [2011] UKEAT 0192_11_1309 (13 September 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0192_11_1309.html Cite as: [2011] UKEAT 0192_11_1309, [2011] UKEAT 192_11_1309 |
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON, EC4Y 0DS
At the Tribunal
Before
(SITTING ALONE)
MRS H OKUOIMOSE APPELLANT
CITY FACILITIES MANAGEMENT (UK) LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(Representative) Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ
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(Consultant) NorthgateArinso Employer Services Warwick House Hollins Brook Way Pilsworth Bury BL9 8RR |
SUMMARY
JURISDICTIONAL POINTS – Fraud and illegality
The Claimant was a member of the family of an EEA national and so was at all times entitled to reside and work in the UK, irrespective of the expiry of the entry in her passport. The Employment Judge who found the contract of employment had become illegal, and so the Claimant could not enforce her claim for unlawful deductions, had considered irrelevant factors viz the reasonableness of the employer’s belief that she was not entitled to work, and that it would be exposed to penalties.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
5. The legislation arises under treaty obligations. The Claimant’s husband is a Spanish national and the Claimant herself is Nigerian, who acquired rights by reason of being a member of Mr Okuoimose’s family. The European obligation arises under directive 2004/38/EC, which provides in relevant part as follows:
“Article 23
Related Rights
Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self‑employment there.”
“Article 25
General provisions concerning residence documents
1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.
2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents.”
“13.— Initial right of residence
(1) […]
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
[…]”
“14.— Extended right of residence
(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.
(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.
[…]”
“15.— Permanent right of residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national butt who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
[…]”
“15 Penalty
(1) It is contrary to this section to employ an adult subject to immigration control if—
(a) he has not been granted leave to enter or remain in the United Kingdom, or
(b) his leave to enter or remain in the United Kingdom—
(i) […]
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
[…]”
The facts
9. The Judge found the facts were not in dispute and so I will replicate them.
“2. The Claimant is a Nigerian citizen, who commenced employment with the Respondent on 28 March 2010, as a cleaner at the ASDA store in Stevenage.
3. On her passport, there is a Home Office stamp stating that a “right of residence in the UK as a family member of an EEA national (Mr Okuoimose), who is resident in the UK in the exercise of a Treaty right, is hereby given, until 8 July 2010.” It is common to both parties that ‘residence’ implies, also, the right to work.
4. On 8 July 2010, the Respondent suspended the Claimant without pay and requested of her that she provide evidence of her eligibility to work in the UK. This situation continued until 16 August 2010, at which point payment of wages recommenced (‘the suspension period’). The Claimant stated that she had initiated an application to renew the permit on her passport. The Respondent themselves investigated the matter with the UK Border Agency (‘UKBA’) and were informed by letter of 12 August 2010 that, in respect of their request for confirmation of her entitlement to work, the Agency had “checked their records and cannot confirm that this is the case and therefore I cannot confirm that this individual is currently entitled to work in the UK on the basis of an outstanding application.” The letter went on to say that “unless your employee is able to provide you with appropriate evidence of their entitlement to work, you will not have a statutory excuse against liability for payment of a civil penalty for employing an illegal migrant worker.”
5. On 20 August 2010, the Respondent dismissed the Claimant, on the grounds of illegality.
6. Later that same day, the Claimant provided a letter to the Respondent from the Border Agency, dated 16 August 2010, stating that, until her “application has been decided by the UKBA, you will be treated for immigration purposes as a family member of a legally resident EEA national and, as such, you are free to live and work in the UK.” It further confirmed that “from 29 February 2008 this document (the letter) may form part of a statutory excuse against liability to pay a civil penalty under s.15 of the Immigration, Asylum and Nationality Act 2006 for employing an illegal migrant worker.” As a consequence, the Respondent, in effect, reinstated the Claimant and by letter of 24 August 2010, requested that she return to work that evening.
7. The Claimant appealed on 23 August 2010 (marked as received by the Respondent on 26 August 2010) against the decision to dismiss her and requested that she be paid the wages she was due during the suspension period. As previously stated, the Respondent had already rescinded the dismissal and they further stated in their letter of 25 October 2010 to the Claimant’s representatives that she had been reimbursed for the pay withheld during the period from the date of the Border Agency’s letter of 16 August 2010, to the 20 August 2010.
8. Thereafter, the Claimant was on sick leave and it seems (although neither issue is relevant to this claim) that she did not return to work for the Respondent.”
10. The only addition necessary is to cite the UKBA letter of 16 August 2010, which has this:
“Certificate of Application
(for family members of EEA nationals, who are not themselves EEA nationals)
Thank you for your application of 23 July 2010 for a Residence Card or Permanent Residence Card. Until such time as your application has been decided by the UK Border Agency, you will be treated for immigration purposes as a family member of a legally resident EEA national and, as such, you are free to live and work in the United Kingdom.
We advise you not to make any non-urgent travel plans until we have decided your application and returned your passport(s) or travel document(s).”
12. The Judge considered that he should apply the judgement of the EAT Mummery J presiding in Bamgbose v The Royal Star & Garter Home [1996] UKEAT/841/95 and he came to the conclusion that a contract was illegal by statute during the period of suspension. It has to be said that that Judgment was at a preliminary hearing indicating the matter should be heard at a full hearing, and a full hearing appears never to have taken place. It is important to note what issue was sent to a full hearing:
“3. New evidence before the Tribunal was that the Applicant did not obtain permission to work in the United Kingdom until 27 January 1993. His employment before that date was illegal under section 3 of the Immigration Act 1971 and Rule 131 of the Immigration Rules. It is arguable that his contract of employment was tainted by illegality throughout but we prefer the Respondent’s alternative submission that the contract was severable and accordingly tainted by illegality until 27 January 1993 but not thereafter.”
The submissions
Discussions and conclusions
23. In addition, the Judge paid attention to the provision of the penalties in a way which did not admit any effective application to the Claimant. As I have indicated by the citation from the 2006 Act, penalties are there incurred where leave to remain in the United Kingdom has ceased to have effect by reason of the passage of time. That was cited specifically by the Judge in paragraph 21 and simply has no application here. For, as I have indicated, the Claimant was entitled to be here as of right and did not have leave to enter, nor did the leave to enter, even if she had it, expire with time. She had a right for as long as she met the condition of being a family member of Mr Okuoimose to be here and, therefore, any reference to s.15 is misplaced.
25. The agreed chronology in this case indicates that on 3 July 2010 the Claimant made an application to UKBA for permanent leave to remain. As I have indicated, that was not actually what she was required to do. She was entitled as of right to reside here permanently. The application was made before 8 July 2010 when the residence card, stamped in her passport, expired. However, that expiry did not affect the substantive underlying right of the Claimant, so long as she met the condition of being a family member of Mr Okuoimose to reside and work here. So, this contract was not illegal.