Work Rights for Migrants in the UK: The 2026 Position

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The position in 2026

What You Can Still Claim

Employers sometimes assume that a worker without permission has no standing to complain about anything — no wages claim, no dismissal claim, no discrimination claim. That assumption has been wrong since 2019, and acting on it is how employers end up paying more than they would have paid by simply meeting their obligations.

The starting point is that an employment contract is not made void merely because the worker lacks immigration permission. Parliament created criminal and civil consequences for the employer; it did not, in doing so, strip the worker of contractual and statutory rights. Some claims do become harder, and one of them turns on how long the person has worked. But the door is not closed.

The Two Cases That Decide This

Two decisions govern the area. One settles whether the statute itself kills the contract; the other settles when a court will refuse a claim on public policy grounds. Together they explain why an employer facing a wages claim from a worker without status is usually in a weaker position than it expects.

Okedina v Chikale and the £72,271 Award

Ms Chikale was brought from Malawi as a live-in domestic worker. Her visa expired; her employer kept her passport, told her an extension was in hand, and submitted an application that was refused. She went on working, unaware she had no leave, until she was dismissed after asking for more money. The tribunal ordered payment of £72,271.20, of which roughly £64,000 was unlawfully deducted wages.

The Court of Appeal upheld it. Giving the leading judgment, Underhill LJ held that sections 15 and 21 of the Immigration, Asylum and Nationality Act 2006 do not impliedly prohibit the contract: legislation creating an offence for the employer says nothing about whether the contract that employer entered into is valid. The common law illegality defence also failed, because Ms Chikale did not know of the illegality and had not knowingly taken part in it.

Patel v Mirza and the Range of Factors

Where illegality is raised at common law, the court no longer applies a mechanical rule. In Patel v Mirza [2016] UKSC 42 the Supreme Court replaced the old approach with an assessment of the underlying purpose of the prohibition, any other relevant public policy, and whether refusing the claim would be a proportionate response.

Applied here, the purpose of the illegal working provisions is to deter employers from engaging people without permission. Allowing an employer to keep wages it never paid would reward the very conduct the provisions target. That is why the defence rarely succeeds against a worker who did not know, and why it is weakest of all where the employer created the problem.

Where EU Workers Stand Now

EU citizens who did not obtain status under the EU Settlement Scheme, or whose status has lapsed, are in the same position as any other person without permission: the employment rights described below still apply. The immigration question and the employment question are decided separately, and a gap in status does not retrospectively unmake the work that was done.

Enforcement and the Fair Work Agency

Labour market enforcement was reorganised on 7 April 2026, when Part 5 of the Employment Rights Act 2025 came into force and the Fair Work Agency began operating. It brings the existing enforcement bodies together and takes on enforcement of rights such as holiday pay and statutory sick pay. For a worker owed wages, it is a route that does not depend on bringing a tribunal claim personally.

Which Rights Survive

Not every right behaves the same way. Some attach from the first day and take no account of status; one turns on length of service; one is capped and one is not. The distinctions matter more than the general principle, because they decide what a claim is actually worth.

Minimum Wage and Unpaid Wages

Entitlement to the national minimum wage arises from doing the work, not from holding permission to do it. Unpaid or underpaid wages are recoverable as an unlawful deduction, and this is where the largest sums usually sit — as Okedina shows, years of underpayment accumulate into a figure far larger than any single dismissal award. Current rates are published on gov.uk.

Unfair Dismissal and the Qualifying Period

Unfair dismissal is the one claim that turns on service rather than status. Two years' continuous service is required, and that remains the position through 2026; the Employment Rights Act 2025 reduces it to six months for dismissals from 1 January 2027. Some dismissals — for whistleblowing, for asserting a statutory right, for pregnancy — are automatically unfair and need no qualifying period at all.

Awards are capped. From 6 April 2026 a week's pay is capped at £751 and the compensatory award at £123,543 or a year's pay, whichever is lower. The basic award is calculated from the capped week, so its ceiling is 30 × £751 = £22,530.

Discrimination and Injury to Feelings

Discrimination and harassment claims under the Equality Act 2010 need no qualifying period and carry no cap. On top of financial loss, tribunals award a separate sum for injury to feelings, set by the Vento bands. For claims presented on or after 6 April 2026 the bands run £1,300 to £12,600, £12,600 to £37,700, and £37,700 to £62,900, with the most exceptional cases capable of exceeding the top figure.

Rights That Survive Status

Working Time and Holiday Pay

The Working Time Regulations 1998 give paid annual leave, rest breaks and limits on weekly hours. They apply to workers, a category wider than employees, and nothing in them turns on immigration permission. Accrued but untaken leave is payable on termination, and long periods of unpaid leave entitlement are a common second head of claim alongside unpaid wages.

What This Means for Employers

An employer facing both problems at once — a Home Office penalty and a tribunal claim from the same worker — is dealing with two systems that do not offset each other. Paying the penalty does not extinguish the wages claim, and settling the wages claim does not reduce the penalty.

Right to Work Checks Are a Separate Duty

A compliant check gives a statutory excuse against the penalty. It is not a defence to a claim for wages, holiday pay or discrimination, and the absence of a check is not evidence that the worker has no rights. The two questions are decided by different bodies applying different tests, and an employer that conflates them tends to answer both badly.

Civil Penalties and Criminal Liability

The civil penalty maximum is £60,000 per worker, with published starting points of £45,000 for a first breach and £60,000 for a repeat breach within three years. Separately, section 21 of the 2006 Act creates a criminal offence where the employer knew, or had reasonable cause to believe, that the person was disqualified, carrying up to five years' imprisonment on indictment. If a notice has landed, our guide to challenging an illegal working civil penalty sets out the route.

When the Illegality Defence Fails

The defence is at its weakest where the employer controlled the immigration position — held the passport, undertook to make the application, or told the worker that permission was in place. It also fails where the worker simply did not know. It is at its strongest, and can still succeed, where the worker knowingly participated in a scheme to conceal the position from the outset.

Bringing a Claim

Most claims of this kind fail for procedural reasons rather than legal ones: the worker cannot show what was agreed, or misses the deadline. Both are fixable, and the deadline is about to become more forgiving.

Evidence of the Working Relationship

There is rarely a written contract. What usually proves the case is the ordinary residue of working life — rota photographs, messages arranging shifts, bank transfers or cash records, uniforms and name badges, a payslip however irregular, and the names of colleagues who can say what hours were worked. Contemporaneous material carries far more weight than a later account, so it should be gathered before any confrontation with the employer.

Settlement or Tribunal

Employers in this position often prefer to settle, because a tribunal hearing puts their own compliance failures on a public record. That gives a claimant real leverage, but it also means the first offer is usually low. A settlement agreement compromising statutory claims requires independent legal advice to be binding, which is a protection for the worker rather than an obstacle.

Time Limits and ACAS Early Conciliation

Most tribunal claims must currently be brought within three months less one day of the act complained of, with ACAS early conciliation notified first — that step pauses the clock. Deadlines here are strict and are the most common reason a good claim is lost.

Funding a Claim

There is no fee to bring an employment tribunal claim. Legal aid is not generally available for employment claims, but conditional fee and damages-based agreements are common, and specialist advice charities take cases of this kind. Where the facts suggest labour exploitation or trafficking, separate support and immigration routes may be engaged, and those should be considered before any tribunal step is taken.

Frequently asked

Questions about work rights without status