8 June, 2012
1. Abolition of family visit appeals.
2. Forced marriage – new criminal offence to be created
Legal Paper MW 252 refers to the consultation undertaken by the government in late 2011 on the question whether it should be made a specific criminal offence to force persons into marriage without their consent. Migration Watch responded to the consultation in support of criminalisation, as recorded in paragraph 8 of that briefing paper. The government has today, 8 June 2012, published a paper setting out the results of the consultation, summarising the views for and against and announcing its intention of legislating for criminalisation. We fully support this intention and will keep a close eye on the introduction and passage of the necessary legislation.
3. Immigration and illegality of contract
The recent Court of Appeal decision in Hounga v. Allen  EWCA Civ. 609, was an appeal against a decision of the Employment Appeal Tribunal in an unfair dismissal case which gave rise to issues of relevance to immigration law. The appellant was a Nigerian national and reached an agreement with the respondent that she would travel to the UK on a visitor’s visa, which would allow her to stay for 6 months only and would not allow her to work. She applied for the visa under a false name and provided a forged letter which showed her as being invited to the UK to visit her grandmother. She repeated these lies to the immigration officer on arrival. She was met by the respondent on arrival and taken to the latter’s home where she began to work as an au pair. She worked in this capacity for 18 months, during which time she was physically abused by the respondent and told that if she left the house and was found by the police she would be detained as an illegal immigrant. After she was dismissed she brought a claim for unfair dismissal. The employment tribunal found that she was well aware of the illegal nature of the arrangement made between her and the respondent, and that her claim for unfair dismissal was therefore tainted with illegality and could not succeed. This finding was not contested by the appellant and the Court of Appeal was more concerned with a separate claim for racial discrimination.
The appellant had been badly treated in her employment but she was undoubtedly aware that her employment was illegal and could not therefore expect to succeed with her claim. Even if she had not been so aware it would probably not have made any difference. The contract would still have been illegal and ignorance of the law is no defence.
It is worth noting that the respondent employer would have been liable to civil penalties under section 15 of the Immigration, Nationality and Asylum Act 2006 because she knowingly employed an illegal immigrant. Such action is also made a criminal offence under section 21 of the same Act and on conviction is punishable with a fine, imprisonment or both. We do not know whether proceedings were taken against the respondent in this case under either section.
Harry Mitchell QC
Honorary Legal Adviser