Human trafficking victim entitled to compensation for race discrimination in the course of dismissal despite illegal entry to the United Kingdom
September 18, 2014
Human trafficking victim entitled to compensation for race discrimination in the course of dismissal despite illegal entry to the United Kingdom
UK Supreme Court
Hounga v Allen & Another
On appeal from:  EWCA Civ 609
Before: Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
July 30, 2014
Reported by Linda Awuor& Diana O. Kerubo
The appellant, Miss Hounga of Nigerian nationality resided in England since January 2007, when she was about 14 years old.She came from Nigeria to the United Kingdom(UK) under arrangements made by the family of the respondent, Mrs Allen, who was of joint Nigerian and British nationality and who resided in England with her children.
Pursuant to the arrangements, in which the appellant knowingly participated, her entry was achieved by her presentation to UK immigration authorities of a false identity and their grant to her of a visitor’s visa for six months. For the following 18 months she lived in the home of the respondent.
Although the appellant had no right to work in the UK, after July 2007, no right to remain in the UK, the respondent employed her, unpaid, to look after her children in the home. There, the respondent inflicted serious physical abuse on the appellant and told her that, if she left the home, she would be imprisoned because her presence in the UK was illegal.
In July 2008 the respondent forcibly evicted the appellant from the home and thereby dismissed her from the employment. This dismissal according to the appellant was discriminatory against her on racial grounds, namely on ground of nationality, and that the respondent treated her less favourably than she would have treated others.
The appellant issued a variety of claims and complaints against the respondent in the Employment Tribunal. The one claim which the tribunal upheld was her complaint of unlawful discrimination but only the part of the complaint which related to her dismissal. In this regard it ordered the respondent to pay compensation to the appellant for the resultant injury to her feelings. The Employment Appeal Tribunal dismissed the respondent’s cross-appeal against the order. But the Court of Appeal upheld a further cross-appeal brought by the respondent against it and set it aside. The court held that the illegality of the contract of employment formed a material part of the appellants’ complaint and that to uphold it would be to condone the illegality. The appellant, aggrieved by the order of the Court of Appeal, lodged the appeal.
- Whether the appellant having participated in illegality, a claim for recovery from the respondent for race discrimination and unfair dismissal would be defeated.
- United Kingdom’s international obligations on the rights of victims of human trafficking before the UK courts and tribunals.
Contract Law-–illegal contracts of employment- illegality defence- whether the appellants’ participation in illegality could defeat a claim for recovery from the respondent for race discrimination and unfair dismissal.
International Law-human trafficking-combatting human trafficking and protection of victims-United Kingdom’s international obligations on the rights of victims of human trafficking before the UK courts and tribunals.
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (“the Palermo Protocol”) signed in 2000 and ratified by the UK on 9 February 2006.
Article 3defines trafficking :
- Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability… for the purpose of exploitation. Exploitation shall include, at a minimum, … sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
- The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
- The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article.”
Article 6(6)of the Palermo Protocol provides that each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.
The Council of Europe Convention on Action against Trafficking in Human Beings CETS No 197 (“the Convention”) was done in Warsaw on 16 May 2005 and, following ratification, the UK became obliged to adhere to it, as a matter of international law, on 1 April 2009.
Among the purposes of the Convention, set out in article 1, are the prevention of trafficking, the protection of the human rights of victims and the design of a comprehensive framework for their protection and assistance. By article 4, the Convention imports the definition of trafficking set out in the Palermo Protocol.
Article 15 provides that each party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.
Article 26 provides that each party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.
Article 4(1),(2) of the European Convention on Human Rights provides that no one shall be held in slavery or servitude and that no one shall be required to perform forced or compulsory labour.
Article 8 of the EU Directive
Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to [trafficking].
- The application of the defence of illegality to a claim founded on contract often had its own complexities. But, in that it was unlawful and a criminal offence under section 24(1)(b)(ii) of the Immigration Act 1971 for the appellant to enter into the contract of employment with the respondent, the defence of illegality in principle precluded her from enforcing it. In that regard a claim for unfair dismissal would require analysis different from a claim for wrongful dismissal. But a claimant for unfair dismissal was nevertheless seeking to enforce her contract, including often securing her reinstatement under it. No challenge was brought to the conclusion of the tribunal upheld by the appeal tribunal that the defence precluded the appellant’s claim for unfair dismissal. Equally there was no challenge to the dismissal on that same basis of her claim for unpaid wages.
- Unlawful discrimination was a statutory tort in relation to discrimination in the field of employment. The application of this defence of illegality to claims in tort had however, been highly problematic. Public conscience test had for years been applied to claims in both tort and contract.In [Saunders v Edwards] the court held that a vendor could not rely on the defence of illegality where he had fraudulently represented to the purchasers. This was regardless of the fact that the parties had agreed to reduce the value of a flat so as to enable the purchasers pay less stamp duty. This test was later considered an imponderable factor and the reliance test took hold in [Tinsley v Milligan] where the court was of the opinion that a claimant was entitled to recover if he was not forced to plead or rely on the illegality, even if it emerged that the title on which he relied was acquired in the course of carrying through an illegal transaction.
- The inextricable link test was developed in relation to tort and particularly was to be applied to complaints of unlawful discrimination. In[Vakante v Governing Body of Addey and Stanhope School]matters of fact and degree had to be considered: the circumstances surrounding the applicant’s claim and the illegal conduct, the nature and seriousness of the illegal conduct, the extent of the applicant’s involvement in it and the character of the applicant’s claim were all matters relevant to determining whether the claim was so “inextricably bound up with” the applicant’s illegal conduct that, by permitting the applicant to recover compensation, the tribunal would appear to condone the illegality.
- The Court of Appeal was of the view, that the appellant’s complaint was inextricably linked to her own unlawful conduct. The respondent and the appellant were equal participants in entry into the illegal contract of employment. Whichever party bore the greater responsibility for making of the illegal contract, was a willing participant in it. If, indeed, the test applicable to the respondent’s defence of illegality was that of the inextricable link, then this was link absent. Entry into the illegal contract on 28 January 2007 and its continued operation until 17 July 2008 provided, only in the context in which the respondent then perpetrated the acts of physical, verbal and emotional abuse by which, among other things, she dismissed the appellant from her employment.
- The defence of illegality rested upon the foundation of public policy. It was therefore necessary to ask first what aspect of public policy which founded the defence and second to ask whether there was another aspect of public policy to which application of the defence would run counter.
- On the first question, concern to preserve the integrity of the legal system was a helpful rationale of the aspect of policy which founded the defence but the considerations of public policy which militated in favour of applying the defence so as to defeat the appellant’s complaint scarcely existed. Therefore:
- The tribunal’s award of compensation to the appellant did not allow her to profit from her wrongful conduct in entering into the contract. It was an award of compensation for injury to feelings consequent upon her dismissal, in particular the abusive nature of it.
- The award did not permit evasion of a penalty prescribed by the criminal law. The appellant had not been prosecuted for her entry into the contract and, even had a penalty been thus imposed upon her, it would not represent evasion of it.
- The award did not compromise the integrity of the legal system by appearing to encourage those in the situation of the appellant to enter into illegal contracts of employment.
- The application of the defence of illegality so as to defeat the award would compromise the integrity of the legal system by appearing to encourage those in the situation of the respondent to enter into illegal contracts of employment. It would possibly engender a belief that they could even discriminate against such employees with impunity.
- On the second question, the facts disclosed that the respondent and her family were guilty – or close to being guilty – of trafficking the appellant from Nigeria to England. As required under Article 4 of the European Convention on Human Rights the UK authorities were striving in various ways to combat trafficking and to protect its victims. Parliament had provided,section 71 of the Coroners and Justice Act 2009 which extended to England, Wales and Northern Ireland, that it was a specific criminal offence to hold a person in slavery or servitude or to require her or him to perform forced labour. The decision of the Court of Appeal to uphold the respondent’s defence of illegality to her complaint ran strikingly counter to the prominent strain of present public policy against trafficking and in favour of the protection of its victims. The public policy in support of the application of that defence, to the extent that it existed at all, ought to have given way to the public policy to which its application was an affront and the appellant’s appeal should have been allowed.
As per LORD HUGHES with whom LORD CARNWATH joined
- The claim of statutory tort in the instant case was set in the context of the claimant’s unlawful immigration, but there was not a sufficiently close connection between the illegality and the tort to bar her claim. Contrast her claim to recover for breach of contract of employment or, by statutory extension, for unfair dismissal, when such claims depended on a lawfully enforceable contract of employment but her whole employment was forbidden and illegal.
- United Kingdom was bound by a series of international instruments, all of which adopted the same definition of trafficking. Under the instruments transportation amounted to trafficking if, in the case of an adult it was:
- accomplished by threat, force, deception or the other forms of coercion referred to; and
- only if it was undertaken with a view to exploitation, in the sense defined.
In the case of a child, (b) sufficed. Assuming that the appellant was a child at the time, which seemed overwhelmingly likely, it remained necessary that the transportation was undertaken with a view to her exploitation. Her subsequent exploitation was no doubt evidence of a prior intent on the part of the respondent, but it was not conclusive, and the tribunal made no finding.
- The internationally recognised rule was clear, as was English criminal law. The trafficked victim, was not relieved of criminal liability for an offence which she had committed. If, however, she was compelled to commit it as a direct consequence of being trafficked, careful consideration ought to have been given to whether it was in the public interest to prosecute her. In the present case, there was no finding that the appellant was compelled to commit the immigration offences which she committed; the tribunal found that she was well aware of what she was doing and voluntarily did it in the hope of advantage. Young as she clearly was, she was no doubt under the influence of the respondent and that would constitute very real mitigation if punishment were in question. But what her trafficking, did not take away the illegality of what she knowingly did.
- The requirement under Article 6(6) of the Palermo Protocol that each State Party ensured that its domestic legal system contained measures that offered victims of trafficking in persons the possibility of obtaining compensation for damage suffered was impossible to interpret that international obligation as requiring English law to permit the appellant to recover damages for the statutory tort of discrimination. That statutory tort was not in any sense co-extensive with trafficking or for that matter with exploitation. It would also be impossible to interpret the article as requiring English law to depart from its general principles of illegality so as to enable a person such as the appellant to recover wages under an unlawful contract of employment.
- The appellant therefore succeeded in her appeal, on the ground that there was insufficiently close connection between her 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, and to allow her to recover for that tort would not amount to the court condoning what it otherwise condemned.
Relevance to Kenya
This case sets precedence in the enforcement of rights of victims of human trafficking (both for Kenyan citizens in other States and illegal aliens in Kenya).
Kenya Citizenship and Immigration Act is clear on the position of illegal aliens in Kenya. Under Section 45(1) illegal aliens are not to be employed.
Section 45(1) no person shall employ: a foreign national who entered Kenya illegally, a foreign national whose status does not authorize him or her to engage in employment, a foreign national on terms, conditions or in a capacity different from those authorized in such foreign national’s status.
It also declares void and of no effect any entry permits, passes, certificates or other authorities obtained by fraud, misrepresentation, concealment or non- disclosure.
Any entry permit, pass, certificate or other authority, whether issued under this Act or under the repealed Acts, which has been obtained by or was issued in consequence of fraud or misrepresentation, or the concealment or nondisclosure, whether intentional or inadvertent, of any material fact or circumstance, shall be and be deemed always to have been void and of no effect and shall be surrendered to the service for cancellation.
Section 41-Invalidation of a work or residence permit
- Where a permit has been issued to a person, and that person—
- fails, without the written approval of the Director, to engage within ninety days of the date of issue of the permit or of that person’s entry into Kenya, whichever is the earlier, in the employment, occupation, trade, business or profession in respect of which the permit was issued or take up residence;
- ceases to engage in the said employment, occupation, trade, business or profession; or
- engages in any employment, occupation, trade business or profession, whether or not for remuneration or profit, other than the employment, occupation, trade, business or profession referred to in paragraph (a), the permit shall cease to be valid and the presence of that person in Kenya shall be unlawful, unless otherwise authorized under this Act.Kenya is also bound by various international obligations in the prevention of human trafficking and protection of victims of trafficking. As a member state to the Palermo Protocol, Kenya is for instance put under obligation to ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.
The Counter-trafficking in Persons Act
Section 3 provides that a person commits the offence of trafficking in persons when the person recruits, transports, transfers, harbours or receives another person for the purpose of exploitation by means of: threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of position of vulnerability, giving payments or benefits to obtain the consent of the victim of trafficking in persons or giving or receiving payments or benefits to obtain the consent of a person having control over another person.
Section 3(2) further, it provides that the consent of a victim of trafficking in persons to the intended exploitation shall not be relevant where any of the means set out in subsection (1) have been used.
Under Section 3(3), the recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set out in subsection (1) of this Act.
Section 6-Acquisition of travel documents by fraud or misrepresentation A person who knowingly misrepresents any fact for purposes of facilitating the acquisition of travel documents or fraudulently obtains any document from Government agencies, in order to assist in the commission of an offence of trafficking in persons commits an offence and is liable to imprisonment for a term of not less than ten years or to a fine of not less than ten million shillings or to both and upon subsequent conviction, to imprisonment for a term of not less than ten years without the option of a fine.
Victim Protection Act aims to provide protection of victims of crime and abuse of power, and to provide them with better information and support services, to provide for reparation and compensation to victims and to provide special protection for vulnerable victims.
This Act gives effect to Article 50(9) of the Constitution which requires Parliament to enact legislation providing for the protection, rights and welfare of victims of offences.