A Dilemma for Employers: Do non-EEA Family Members need to provide Proof of Eligibility to Work?

A controversial case in the Employment Appeal Tribunal challenges the rights of employers to request paperwork confirming that a non-EEA family member has a legal entitlement to work in the UK.

The case of Okuoimose v City Facilities Management UK Ltd involved a Nigerian national who was the spouse of a German national.  Whilst Mrs Okuoimose originally presented an EEA residence permit to her employer this subsequently expired.  The employer therefore suspended her without pay.  Further checks by the employer with UKBA did not confirm her entitlement to work in the UK and they dismissed her.  Eventually Mrs Okuoimose obtained a letter from UKBA confirming her right to live and work in the UK as a non-EEA family member and her employer therefore reinstated her.  Mrs Okuoimose sought to recover all the lost salary during her period of suspension via the courts.

Originally the courts stated that an employee could not recover unpaid wages for a period when she would have been an ‘illegal’ worker.   However, upon appeal to the Employment Appeal Tribunal, the Judge held that as the non-EEA family member of an EEA national there was no requirement for a non-EEA national to have any paperwork proving her entitlement to work in the UK.  The argument was that she was automatically entitled to work anyway and the paperwork merely confirmed this.  The employee was therefore held to be entitled to the lost salary.

This case is very interesting as it establishes that EEA family members, despite being non-EEA themselves, clearly have a right to work in the UK with or without a Residence Permit.  This places employers in a tricky position when faced with a family member who has no paperwork at all.

Arguably employers are faced with a situation whereby in accordance with the decision in Okuoimose, migrant workers who are EEA and their non-EEA family members appear to be free not to produce any paperwork for their employers but migrant workers from other jurisdictions must still produce this paperwork!

We would recommend that employers, in order to meet their obligations under Regulation 15 of the Immigration, Asylum and Nationality Act 2006 should still request paperwork (ie. visas, passports) but they will need to reassess the situation carefully where the employee is an EEA national or family member of an EEA national.  Certainly suspending an EEA national or their family member for not having ‘paperwork’ now appears to be unlawful!

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