UK Supreme Court: Victims of trafficking have a right to claim damages from traffickers despite immigration status

In the first modern slavery case to be heard before the UK Supreme Court, it was unanimously held that trafficked people have the right to recover damages from their traffickers despite their illegal entry to the country. International NGO Anti-Slavery International, with legal support from Public Interest Lawyers, intervened to change the common law defence of illegality to vindicate the rights of trafficked people.

The appellant was seeking compensation from her former employers on the grounds of unfair dismissal and unlawful discrimination. The respondents raised the defence of illegality which, under common law, would mean that contracts are unenforceable if they arise from illegal activities. The respondents claimed that the appellant entered the country illegally, and was not legally allowed to enter into an employment contract, and so she should not be allowed to rely on that illegal contract to make a claim for compensation.

Her claim was previously dismissed by the Court of Appeal based on this argument (that her employment was illegal) and that she consented to this illegality. However Anti-Slavery International intervened at the Supreme Court level. It highlighted the UK’s obligation to protect victims of trafficking and argued that to uphold the respondents’ defence might encourage traffickers to continue to enter into these illegal contracts and perpetuate abuse. The Supreme Court held that the basis for the defence of illegality was based on policy reasons, and the discouragement of illegal activities. The central question was whether to uphold the claim would be to indirectly encourage the unlawful conduct of which the parties in question had been guilty. According to the Court, it would be a greater affront to policy to allow the traffickers to shield themselves behind the defence of illegality to avoid paying compensation to their victims as that would run contrary to anti-trafficking policies and the UK’s international obligations.

Click here to read further analysis of Hounga v Allen [2014] UKSC 47.

Click here to read about the role of Anti-Slavery International and Public Interest Lawyers in this case. 

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