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Elias P. has held, in Blue Chip Trading Ltd v Helbawi, that a breach of conditions imposed by a student working visa was not sufficient to render the whole employment contract illegal so as to a defeat a claim under the National Minimum Wage Act 1998. Mr Helbawi worked longer hours than was permitted by his visa during term-time. Notwithstanding that the breach was “flagrant and deliberate” and indeed a criminal offence, Elias P held, on the facts of this case, that part of the contract was legal and could be severed from the illegal part:

  • the breach of the conditions was not a complete bar to Mr Helbawi doing any work at all. His visa allowed him to do particular work at certain times (Vakante v Governing Body of Addey and Stanhope School distinguished)
  • Mr Helbawi could, subject to liability, recover with respect to those weeks where he was not working in excess of the number of hours permitted by his visa
  • when exceeding the number of hours permitted to work under the terms of the visa, Mr Helbawi was knowingly doing the very thing he was forbidden from doing.

Accordingly, he would not be allowed to recover in respect of these weeks as to allow otherwise would involve the court condoning the illegality