Guest post by Ashley Stothard, immigration executive at national law firm Freeths
Stothard: The decision to litigate is baffling
A case recently picked up by the website Free Movement deserves wider attention across the legal community. The case of Jen and Jamie Limited v Secretary of State for the Home Department is extraordinary – not because of its legal complexity, but because it ever reached trial at all.
At the heart of the matter is an £80,000 civil penalty levied against a convenience store business for employing two individuals in breach of immigration rules. The workers in question were in the UK on health and care visas but had been made redundant.
Under the conditions of their visas, they were not permitted to work elsewhere until they had secured a new visa which allowed working. Despite this, they were invited to work at the store on a ‘voluntary’ basis, purportedly to gain retail experience.
The facts, however, painted a different picture. The individuals worked regular shifts of three to four hours per day. They performed key retail duties, such as staffing the counter and stocking shelves. They sold tobacco and lottery products. They told immigration officials that they hadn’t yet been paid but expected to be paid £5.50 an hour after training – less than half the national minimum wage.
Jen and Jamie Limited’s arguments were feeble. They claimed the burden of proof lay with the Home Office, that the penalties were excessive, and that the individuals in question were simply volunteers. When those claims didn’t work, they attempted to reframe the working arrangement as unpaid training.
For good measure they threw in the implication of procedural unfairness and suggested that the owner’s English proficiency hindered his ability to engage with immigration officers.
The appeal was rejected on all substantive grounds. The court found that the workers undertook regular shifts, performed core duties, and expected payment – hallmarks of employment under UK law.
The court found that the burden of proof rested squarely with the appellant, and that the court did not have unfettered discretion to adjust penalties based on the appellant’s ability to pay. The argument of procedural unfairness was trumped by the fact that the owner had stated in his witness statement that he could speak English just fine.
What’s most baffling is the decision to litigate. Civil penalties are not optional suggestions; they are enforceable consequences for breaching immigration law. Attempting to evade them through weak appeals not only fails legally but can backfire reputationally and financially.
Rarely do civil penalty challenges reach trial for this very reason. The appellant could have accepted a discounted penalty of £56,000 if paid within 21 days. Instead, they pursued an appeal which failed and exposed them to greater financial liability and reputational damage.
The judgment is now public, and with it, a deeply troubling account of how two vulnerable individuals – recently made redundant and reliant on their visa status – were placed in a position where they were expected to work without pay, under the guise of training.
The arrangement was legally indefensible and entirely unethical. It exposed a disregard for the rights and dignity of migrant workers.
Jen and Jamie Limited is a reminder that not every fight is worth picking. When the evidence points to exploitation, the best course is to accept responsibility, better your processes, mitigate the damage, and move forward.
Pursuing litigation in the face of such facts risks compounding harm – not only to the individuals affected, but to the organisation’s credibility and standing.
For immigration practitioners and employment lawyers alike, this case reinforces the need for clear, honest advice and a strong understanding of the risks associated with illegal working and civil penalty challenges.
The stakes are high, and as this case shows, the consequences of getting it wrong can be severe.
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