Immigration status is not indissociable from nationality


The Supreme Court has decided in Taiwo -v- Olaigbe 2016 that mistreatment because of immigration status was not direct discrimination.
This case concerned two migrant workers, who were both Nigerian. They brought separate claims in the Tribunal as a result of the mistreatment they suffered at the hands of their employers, characterised in one case as “systematic and callous exploitation”. The Supreme Court upheld a decision of the Court of Appeal, holding that while immigration status is a function of nationality, it is not so closely associated with nationality as to be indissociable from it. In these cases the employees were treated disgracefully, but it was because of their immigration status, not because they were Nigerian. As such, their claims for direct discrimination could not succeed.
The claims for indirect discrimination also failed in these circumstances, as the parties were unable to identify a provision, criterion, or practice (PCP) which would have applied to all employees, regardless of immigration status. However, Lady Hale did not rule out the possibility that it may be possible to identify such a PCP in a slightly different case in future.
Lady Hale noted that Parliament had deliberately decided not to include immigration status as a protected characteristic under the Equality Act 2010. She went on to state that the outcome of this case did not mean that the employees did not deserve a remedy for the mistreatment that they had suffered, and suggested that Parliament consider legislating to create a way for such individuals to be compensated for the humiliation, fear and distress caused by their mistreatment, as this does not exist at the moment.

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