Immigration update

Immigration law update: immigration status discrimination is not race discrimination

Jacqueline Lane comments on Taiwo v Olaigbe; Onu v Akwiwu [2016] UKSC 31.

About the author
Jacqueline Lane is a senior law lecturer at the University of Huddersfield .

Facts: These joined appeals to the Supreme Court from the decision of the Court of Appeal ([ 2014] EWCA Civ 279) concerned the mistreatment of migrant domestic workers by their employers, and were brought to determine whether such treatment amounted to either direct or indirect race discrimination under the Equality Act (EqA) 2010 or the Race Relations Act (RRA) 1976.

Taiwo was a Nigerian national, who entered the UK, in 2010, with a migrant domestic worker’s visa which had been obtained for her by Mr and Mrs Olaigbe, her employers. She suffered significant maltreatment at the hands of the couple, but following her escape in January 2011, she succeeded in a number of employment tribunal (ET) claims against them. However, her claims for both direct and indirect race discrimination were dismissed on the ground that her treatment was due to her status as a vulnerable migrant worker rather than her nationality. Onu’s case concerned similar facts. Both the Employment Appeal Tribunal and the Court of Appeal dismissed the women’s claims of unlawful discrimination on the ground of race or national or ethnic origin.

Decision: The Supreme Court dealt first with the issue of direct discrimination. The court determined that the question was whether or not discrimination on the ground of immigration status could amount to discrimination on the ground of nationality. Arguments were put forward that immigration status was not only a function of nationality, but that a flexible approach to the concept of nationality had been adopted in other contexts such as human rights. Nevertheless, the court adopted a literal approach to the interpretation of the EqA, saying that parliament could have chosen to include immigration status as a protected characteristic, but did not do so.

On the issue of indirect discrimination, the court confirmed that there was no identifiable ‘provision, criterion or practice’ (PCP) which these employers would have applied to all their employees, regardless of immigration status (para 32). Both appeals, therefore, failed as there was neither direct nor indirect unlawful discrimination.

Comment: Lady Hale considered that although the appellants undoubtedly deserved a remedy for the harm which they had suffered, the law could not address all those harms. She suggested that parliament could address the restrictive remedy under section 8 of the Modern Slavery Act (MSA) 2015, giving power to courts to make slavery and trafficking reparation orders where an offence under the MSA had been committed, and consider whether an ET should be given jurisdiction to grant compensation to maltreated migrant workers.

It may also be possible, in future cases, to discern a PCP which has an indirectly discriminatory effect. Nevertheless, despite the appellants’ success in bringing claims relating to wages, rest periods, written terms of employment and, in Onu’s case, unfair (constructive) dismissal, neither was able to demonstrate that she had suffered either direct or indirect discrimination, due to the restrictive legislative definitions. Although the secretary of state has the power under the EqA to introduce amendments, there are so many different levels of immigration status that it is unlikely to be included as a PCP; Lady Hale’s suggestion of an enhanced remedy under the MSA, independent of any conviction, is perhaps the best hope for future claims of maltreatment of such vulnerable migrant workers.