Hounga v. Allen at the Supreme Court: The Defence of Illegality in Race Discrimination Cases and the Competing Public Interest in Preventing the Exploitation of Illegal Immigrants

The defence of illegality operates to prevent a person from benefiting from his/her own illegal conduct. The question to determine in Hounga v. Allen (2014) UKSC 47 was whether an illegal immigrant could bring a claim for race discrimination against the person who had arranged for his/her entry into the United Kingdom. It was a question answered in the negative by the Court of Appeal, as their Lordships had not wished to condone the appellant’s illegal conduct. Upon appeal, the Supreme Court disagreed with the Court of Appeal’s decision that the discrimination claim was linked to the appellant’s illegality and permitted the claim to succeed. The Supreme Court’s decision in Hounga v. Allen is of considerable importance, as its application of the ‘inextricable link’ test provides a way for such claims to succeed, and permits the recovery of a civil remedy. Interestingly, Lord Wilson, in his judgment, held that the claim could succeed (even where it had been tainted with illegality, which was not the case here), as it was in the public interest to protect people who were in the appellant’s position. His Lordship considered that the public interest in protecting vulnerable illegal immigrants outweighed the public interest in applying the defence of illegality.