Victim of trafficking can claim compensation despite illegal entry to UK
27 August 2014
Hounga v Allen [2014] UKSC 47 – read judgment
The Supreme Court has ruled that victims may in some circumstance recover damages from their traffickers. Overturning the judgment of the Court of Appeal that the illegality of the underlying contract ruled out the claim for compensation, the majority held that to permit the trafficker to escape liability would be “an affront” to public policy. The judgment has far reaching implications in this area because, by its very nature, human trafficking often involves illegality. Both the majority and the dissenters provide an interesting analysis and refinement of the law on illegality; as Lord Hughes observes:
It is in the nature of illegality that, when it succeeds as a bar to a claim, the defendant is the unworthy beneficiary of an undeserved windfall. But this is not because the defendant has the merits on his side; it is because the law cannot support the claimant’s claim to relief.
Conversely, when the illegality is not sufficiently closely connected to the claim, and can properly be regarded as collateral, or as doing no more than providing the context for the relationship which gives rise to the claim, the bar of illegality will not fall, as was decided in this case.
Background facts
The appellant, a young Nigerian national, had been engaged by the respondent as an au pair from the age of 14 and subsequently dismissed. Although successful before an employment tribunal, her race discrimination claim failed in the Court of Appeal because of the underlying illegality of the arrangement that led to her dismissal. The contract was illegal because the appellant had agreed to come to the United Kingdom to work, using a false identity to gain entry to the UK. Although she had been offered £50 a week for caring for the respondent’s three children, she never received any money for her work. She also suffered serious physical abuse at the respondent’s hands, who threatened that if she complained to the authorities she would be imprisoned because she had overstayed her visa. Finally the respondent threw her out of the house after an altercation.
The Supreme Court’s ruling
The majority allowed the appeal (with Lords Hughes and Carnwath dissenting in part).
A claimant for unfair dismissal under an illegal contract is nevertheless seeking to enforce that contract. In Enfield Technical Services Ltd v Payne [2008] EWCA 393 the Court of Appeal proceeded on the basis that a defence of illegality could defeat a claim for unfair dismissal.
On the other hand, unlawful discrimination is a statutory tort. The application of the defence of illegality to claims in tort is highly problematic, and cases where an action in tort has been defeated by the maxim are exceedingly rare. The real question to be asked is whether to uphold the claim would be an affront to the public conscience in appearing indirectly to encourage the unlawful conduct of which the parties in question had been guilty.
But this “public conscience” test has since been deemed to be too imponderable a factor. The “reliance test”, namely whether, to advance the claim, the claimant had to rely on the illegality, continues to carry maximum precedential authority but has attracted criticism for working too arbitrarily.
The “inextricable link” test, applying the illegality defence where the claim was so inextricably bound up with the claimant’s illegal conduct that the court could not permit recovery without appearing to condone that conduct, overlapped with the reliance test. In Rhys-Harper v Relaxion Group plc [2003] UKHL 33, the House of Lords considered that, where a contract of employment is tainted by illegality, an employee may none the less complain that her employer discriminated against her. And in Vakante v Addey and Stanhope School Governing Body [2004] EWCA Civ 1065, the question was whether, if the tribunal were to uphold a claim for unfair dismissal, it would have appeared to condone the illegality. If so, the “inextricable link” test applied. In the present case, the instant court held the link to be absent.
However, the bigger question was whether the inextricable link test was applicable at all. The illegality defence rested upon the foundation of public policy. Accordingly, it was necessary to ask “what is the aspect of public policy which founds the defence?” and then “but is there another aspect of public policy to which application of the defence would run counter?”. The court therefore noted that
- the tribunal’s award did not allow the respondent to profit from her wrongful conduct – it was compensation for injury to feelings consequent on her dismissal;
- the award did not permit evasion of a criminal penalty;
- the award did not appear to encourage those in the respondent’s situation to enter into illegal employment contracts;
- applying the illegality defence to defeat the award could appear to encourage those in the appellant’s position to enter into illegal employment contracts, as it could appear that they could discriminate against such employees with impunity.
The considerations of public policy in favour of applying the defence therefore scarcely existed.
The possibility that the respondent was guilty of trafficking in bringing the appellant to the UK in the first place raised another aspect of public policy. Of the International Labour Organisation’s six indicators of forced labour, three certainly existed: physical harm, withholding wages, and threats of denunciation to the authorities. If the case was not one of trafficking, it was so close that the distinction did not matter for the instant purpose. The European Convention on Action against Trafficking in Human Beings 2005 required the protection and assistance of victims of trafficking. It was “too technical” an approach to an international instrument to contend that the provisions in the Trafficking Convention required compensation only for the trafficking and not for related acts of discrimination. In Lord Wilson’s view
it would be a breach of the UK’s international obligations under the Convention for its law to cause Miss Hounga’s complaint to be defeated by the defence of illegality.
Furthermore, Article 4 of the Human Rights Convention required protection from forced labour. Upholding the defence of illegality to the appellant’s complaint ran strikingly counter to the public policy against trafficking.
The dissent
Lords Hughes and Carnwath held that on the particular facts of this case the illegality defence did not apply, on the ground that there was an insufficiently close connection between the appellant’s immigration offences and her claims for the statutory tort of discrimination. The former merely provided the setting or context in which that tort was committed. To allow her to recover for that tort would not amount to the court condoning what it otherwise condemns. But it was not possible in their view to read across from the law of human trafficking to provide a separate or additional reason for this outcome.
Even if one assumes in Miss Hounga’s favour that her treatment by Mrs Allen in England amounted to slavery or forced labour, and even if one assumes, without any findings of fact, that Mrs Allen brought her to England with the purpose of so treating her, she does not appear to have been compelled to commit the immigration offences which she certainly did commit. (para 67).
It was therefore not possible to interpret the international instruments on trafficking as requiring English law to depart from its general principles of illegality so as to enable a person such as Miss Hounga to recover wages under an unlawful contract of employment.
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