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22 Jun 2016

Supreme Court confirms that immigration status is not a protected characteristic

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The Supreme Court has today handed down its judgment in Taiwo v Olaigbe in which it has confirmed that, although immigration status is a function of nationality, the two are not so closely connected as to be indivisible from one another. On that basis, mistreatment of workers on the ground of their immigration status did not amount to discrimination on the ground of nationality.

The Court noted that Parliament could have chosen to include immigration status as a protected characteristic in its own right but did not do so. Robin Allen QC, one of the leading barristers in this area, acted for the claimants in this case but he was not able to persuade the Supreme Court that immigration status and nationality were sufficiently closely linked to provide protection under the Equality Act 2010. The distinction between immigration status and nationality is important for employers who engage migrant workers and will make it easier to dismiss employees whose immigration status is uncertain without the risk of discrimination claims.

Although this is likely to be the last word on this issue in discrimination law, this case involved particularly unpleasant treatment of two migrant domestic workers and the Supreme Court did suggest that Parliament should have provided them with better protection against mistreatment (perhaps under the Modern Slavery Act). The judgment is based purely on domestic law and will not be impacted by a potential vote in favour of leaving the EU later this week.

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