New Judgment: Hounga v Allen & Anor  UKSC 47
30 Wednesday Jul 2014
On appeal from:  EWCA Civ 609
The appellant, a young woman from Nigeria, came to the UK when she was still a child under arrangements made by the respondent’s family. She was granted entry under a false identity and a 6-month visitor’s visa. In reality, she remained for the following 18 months in the respondents’ home, working as a domestic worker for no payment. She was seriously physically abused and threats were made against her by the first respondent stating that if she left the house, she would be imprisoned by the authorities.
After 18 months, the respondents forcibly evicted the appellant. The appellant brought an action for racial discrimination in employment, arguing that due to her nationality she was treated differently than someone else would have been. The ET upheld her claim of unlawful discrimination as to her dismissal but not in the course of her employment. However, the CA found that the illegality of the employment meant the employment contract could not be upheld and it therefore provided a defence to the respondents.
The Supreme Court unanimously allowed the appellant’s appeal against the CA’s findings regarding her dismissal. They found that the appellant’s claims in relation to racial harassment prior to dismissal should also be remitted to the ET. The application of the defence of illegality to tort claims is problematic. The respondents were guilty (or nearly guilty) of trafficking the appellant into the UK and the decision of the CA to uphold the defence of illegality defeats the public policy issues at play in preventing trafficking. However, the Court noted that the appellant did not appear to have been compelled to commit the immigration offences which were committed.