UK employers today operate under powerful, and some may say conflicting, legal pressures. On one hand, they must prevent illegal working under UK immigration laws. On the other, they must comply with the Equality Act 2010 (“the Act”), which prohibits discrimination on grounds including race, nationality, and ethnic origin. While the Act does not list immigration status as a protected characteristic, immigration requirements frequently sit with nationality and race, bringing employment decision into the scope of discrimination law.
The result is a complicated legal landscape where employers must simultaneously verify immigration status while ensuring they do not discriminate when doing so. In practice, this balance is far more difficult than the legislation suggests.
The result is a not an easy relationship between immigration law and employment law. These two regulatory systems frequently pull employers in opposite directions. Increasingly, this tension raises a provocative question “are some employers using immigration compliance as a convenient shield for discriminatory hiring practices?”
Immigration compliance vs Equality obligations
Under UK immigration rules, Employers in the UK are under a statutory duty to prevent illegal working, which means they must carry out right-to-work checks before employment begins. Failure to do so can lead to significant civil penalties (up to £60,000 per illegal worker) and even criminal liability.
However, the Equality Act 2010 requires employers to ensure that these checks are conducted fairly and without discrimination. The government’s Code of Practice on avoiding unlawful discrimination makes clear that employers should treat all candidates consistently when verifying the right to work.
In principle, the rule is simple: employers should focus on whether someone has the legal right to work, not on where they come from. In practice, things become more complicated.
Direct Discrimination: the obvious (but surprisingly common) risk
Under the Act, direct discrimination occurs when an employer treats someone less favourably because of a protected characteristic such as nationality (which falls under the umbrella of race).
A straightforward example would be refusing to hire a qualified candidate simply because they are not British, even though they already hold indefinite leave to remain or another unrestricted right to work.
Another classic mistake is requesting proof of immigration status only from candidates who appear “foreign”. Asking a white British candidate for no documents but demanding a passport from someone with an accent or non-British name is a clear example of unlawful direct discrimination.
Most employers understand these risks. The more controversial issue lies elsewhere.
The “No Visa Sponsorship” policy problem
Many employers now openly state in job advertisements: “We do not offer visa sponsorship”.
From a business perspective, the reasoning is often pragmatic. Sponsorship carries administrative obligations, compliance duties, and significant cost. For smaller employers in particular, becoming a sponsor can feel burdensome.
But from a legal perspective, such blanket policies may be problematic.
A rule that excludes anyone requiring visa sponsorship applies to everyone on its face, but it disproportionately disadvantages non-British and non-Irish nationals. Under discrimination law, this can amount to indirect race discrimination.
In the case of Osborne Clarke v Purohit, the tribunal highlighted the risks of blanket refusal policies toward visa sponsorship. While the case predates the current immigration system, it still reflects a principle that continues to resonate that categorical bans on sponsoring migrant workers can expose employers to discrimination claims.
Employers may attempt to justify such policies as a “proportionate means of achieving a legitimate aim”. But tribunals often look critically at arguments based solely on cost or administrative inconvenience.
For indirect discrimination to be lawful, employers must demonstrate that their policy is a proportionate way of achieving a legitimate aim.
Typical legitimate aims might include:
- compliance with immigration law;
- avoiding unlawful employment;
- maintaining operational efficiency.
However, the proportionality test requires tribunals to ask whether less discriminatory alternatives were available.
For example, a tribunal may ask:
- Could the employer have considered sponsorship for particularly skilled candidates?
- Is the role eligible for sponsorship under immigration rules?
- Is the refusal to sponsor genuinely necessary for the business?
If the answer to these questions suggests the policy was simply adopted for convenience or cost-saving purposes, the justification may fail.
This is where the debate becomes uncomfortable.
UK employers today operate under powerful, and some may say conflicting, legal pressures.
Are Employers quietly getting around Equality Law?
The UK labour market increasingly relies on migrant labour across sectors ranging from healthcare to engineering and technology. Yet many employers still maintain informal or explicit rules against sponsorship.
Some critics argue that these policies function as a de facto filter against foreign workers, even when the role itself could be sponsored under immigration rules.
Employers, of course, push back against this narrative. From their perspective, immigration compliance is complex and the consequences of mistakes are severe. They argue that forcing businesses to consider sponsorship in every role creates unrealistic expectations and unnecessary legal risk.
The truth likely lies somewhere in between. But the legal tension remains unresolved.
Practical hazards Employers should avoid
Employers navigating immigration and equality law should pay particular attention to several common problem areas:
- Inconsistent Right-to-Work Checks
Checks should be conducted for all employees in the same way, regardless of nationality or appearance. - Document Bias
Treating workers differently because they hold an eVisa or time-limited status may raise discrimination concerns. - Sponsorship Costs
Employers must not pass sponsorship costs, such as the Certificate of Sponsorship fee, onto the worker. - Blanket Hiring Policies
A universal “no visa sponsorship” rule may expose employers to claims of indirect discrimination if it cannot be objectively justified.
What’s in the horizon
As labour shortages continue and immigration policy evolves, the overlap between employment law and immigration law will likely produce more litigation.
The uncomfortable reality is that immigration control and equality law pursue different objectives. One aims to regulate who can work in the UK; the other aims to ensure people are treated fairly once they are in the labour market.
For employers, the safest approach is not to rely on blanket rules but to assess roles and candidates individually, focusing on the genuine business needs of the role and the candidate’s lawful ability to work.
For policymakers, the challenge may be deeper: whether the current legal framework places employers in an impossible position between enforcement and equality.
Until that tension is resolved, immigration and employment law may continue to behave less like complementary systems, and more like parties forced to share the same legal obligations despite their resistance.
If you are considering sponsorship, or would like advice on your recruitment practices, please do get in touch with our Immigration or Employment team, who can offer you specialised advice tailored your businesses circumstances.
