At first glance, the Employment Appeal Tribunal decision in Badara v Pulse Healthcare Limited UKEAT/0210/18/BA resembles an unexceptional application of the law on the ‘right to work’ in the UK, as explained by previous, related EAT case law.
Look closer and there appear to be cracks in the reasoning of this otherwise routine event.
The EAT judgment
The Claimant worked for the Respondent as a healthcare support worker. He was a Nigerian national and the family member of an EEA national resident in the UK (his spouse).
He had obtained a residence card from the Home Office, valid for 5 years (until 20 January 2015), under the Immigration (European Economic Area) Regulations 2006/1003 (now repealed and replaced by the 2016 Regulations of the same name).
Between the expiry of the Claimant’s residence card and the Home Office granting him a permanent residence card, the Respondent employer refused to provide him with work because he had not provided them with evidence of his right to work as required by a clause in his contract of employment. During that time, the employer made several enquiries to the Home Office Employer Checking Services but these came back negative, indicating that the Home Office believed that he did not have the right to work (even though Mr Badara had obtained a Certificate of Application as proof that he had applied for the permanent residence card).
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Eventually, in October 2015, the Claimant received his permanent residence card from the Home Office and provided it to his employer. He then brought claims for unlawful deductions from his wages and direct and indirect race discrimination.
The Employment Tribunal allowed his claims for unlawful deductions in part, however, the Tribunal dismissed the Claimant’s claims for unfair dismissal and indirect race discrimination, finding that the employer’s insistence on satisfactory evidence of the Claimant’s right to work was reasonable in the circumstances due to the civil penalties that could be imposed on the employer for failing to conduct such checks properly.
On appeal to the EAT, Mr Justice Soole held that:
- The Employment Tribunal had failed to taken into account that the civil penalty scheme imposed by the Immigration, Asylum and Nationality Act 2006 may be irrelevant where a family member of an EEA national can establish a right to work under EU free movement laws in the Citizens Directive 2004/38EC;
- This, read with the Home Office guidance applicable at the time, suggested that such a person could prove a right to work under free movement laws by presenting evidence other than an official Home Office document. The Tribunal had failed to consider how this was relevant to the contractual requirement to provide evidence of his right to work;
- It was arguable that the employer was not entitled to insist that the Claimant provide it with an official Home Office document verifying his right to work.
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The EAT decided not to remake the Tribunal’s decision itself but to remit it to the Employment Tribunal to resolve the factual questions of whether the Claimant’s contractual terms allowed the employer to refuse to employ him if he did not supply official evidence of his eligibility to work.
Errors of law
I’ve written before about my concerns that the EAT has, on occasion, glossed over some of the technical distinctions that riddle EU immigration law.
Examined through the lens of EU immigration law, Badara appears to lack focus in some important areas, much like the recent EAT judgment in a similar case against Domino’s Pizza.
The judgment reads as though it is assumed that Mr Badara’s right of residence (and his right to work) flowed from the fact that he was married to an EEA national resident in the UK. This seems to interpret the term ‘family member’ in a literal sense, rather than in accordance with its technical meaning in the EEA Regulations. That is not correct in law.
Contrary to the EAT’s discussion, A non-EEA national does not acquire a right of residence (recognised in the form of a Home Office ‘residence card’) merely by being a spouse of an EEA national. They have to be a spouse of an EEA national who is (i) a ‘qualified person’, or (ii) a person with a right of permanent residence in the UK. In reality, EU ‘free movement’ is not really that ‘free’.
The EEA Regulations describe a ‘residence card’ as ‘proof of the holder’s right of residence in the United Kingdom as at the date of issue‘ (bold added). It is not proof of a ongoing right to reside in the same way as a ‘permanent residence card’ is.
So when the EAT relied on the case of Okuoimose v City Facilities Management (UK) UKEAT/0192/11/DA, it appears to conflate these two distinct EEA residence rights that are not made equal. Okuoimose concerned the dismissal of an ASDA store cleaner despite her having a right of permanent residence under the EEA regulations at the time of dismissal. By contrast, in Badara, it was only after the deductions had been made that the Claimant was able to prove conclusively that he had a right of permanent residence.
Comment
In the absence of official Home Office recognition of a right to permanent residence, it is unclear how the Respondent employer in this case could have been satisfied that Mr Badara had the right to work by reference to alternative evidence.
In immigration cases, the Home Office and the Immigration Tribunal often receive detailed evidence to prove, over a continuous 5 year period, a non-EEA national and their EEA-national sponsor have lived in accordance with the EEA Regulations (ie. as a worker, self-employed, a student, retiree or self-sufficient person).
This can be an unwieldy process (as the Upper Tribunal commented on here). It is not the kind of evidence that most employers are comfortable handling without legal assistance. Unsurprisingly, the current version of the Home Office guidance to employers doesn’t encourage this approach.
Whether it is realistic to expect employers in these circumstances to undertake the potentially complex evidential assessments usually reserved for Home Office decision-makers and specialist judges is perhaps a question of some relevance to the ultimate outcome in Badara.
What I find remarkable is the idea that the UK’s small and medium-sized employers are expected to comply with the UK’s ‘right to work’ system or face hefty fines of up to £20,000 per unlawful worker when even the country’s top employment judges struggle to get the technicalities right.
