Since free movement ended, more job applicants now require visas to work in the UK, most commonly through the Skilled Worker route. Hiring someone who requires visa sponsorship involves certain costs and administrative steps, so some employers may prefer candidates who already have permission to work in the UK.
Can a business lawfully choose not to employ individuals who would require visa sponsorship? In our latest newsletter, we explore what UK law says about this approach, highlighting the legal risks and how employers can manage recruitment lawfully under the Skilled Worker route and other visa types.
The Skilled Worker route and visa sponsorship
The Skilled Worker visa is the main route for hiring overseas talent in the UK. Employers must hold a sponsor licence and offer a job that meets certain skill and salary requirements. Sponsorship involves paperwork, compliance duties, and various other costs, such as visa fees and the Immigration Skills Charge. These costs can be substantial, leading some employers to avoid sponsorship.
While employers are not legally required to become sponsors, refusing to consider sponsorship can raise equality and discrimination issues, especially when policies are applied broadly.
Is a ‘no visa’ hiring policy lawful?
The Equality Act 2010 protects individuals from discrimination based on race, including nationality and ethnic origin. A policy excluding anyone who requires a visa may disproportionately affect certain nationalities and could amount to indirect race discrimination, even if applied to all applicants.
This type of discrimination arises when a neutral policy puts a protected group at a disadvantage. Refusing to hire candidates who need a visa can disadvantage foreign nationals compared to UK nationals.
Employers are not required to sponsor, but rejecting someone solely because they need a visa may breach equality law. Tribunal decisions indicate that blanket no-sponsorship policies are likely to be unlawful, particularly where the role is eligible for sponsorship and the candidate meets the criteria. This principle was illustrated in Osborne Clarke Services Ltd v Purohit [2009].
Indirect discrimination and justifying sponsorship decisions
Employers may try to justify a no-visa policy due to cost or administration, but these reasons are rarely strong enough. The law requires any discriminatory effect to be a proportionate way of achieving a legitimate aim. This means the employer must show the policy is necessary and that no less discriminatory option is available.
In some cases, a role may not meet visa requirements due to salary or skill level. In others, urgent hiring needs may leave no time to obtain a licence or visa. These may be relevant factors, but employers should still show they considered the candidate fairly.
A blanket refusal to sponsor is a high-risk approach. It is safer to assess each case individually, considering whether the role qualifies for sponsorship and whether the candidate meets the relevant criteria.
Avoiding bias in recruitment
Employers should take care when wording job adverts and recruitment policies. Stating that only UK citizens may apply or excluding all visa holders could amount to unlawful discrimination. It is safer to refer to work status rather than nationality.
If a role does not meet visa requirements, this can be explained in terms of the job, not the applicant. For example: “This role does not meet the criteria for Skilled Worker visa sponsorship.”
Phrases like “non-UK applicants will not be considered” or “UK passport holders only” carry legal risks. Neutral language focused on work eligibility is more appropriate.
Right to work checks should be carried out for all new hires, regardless of nationality, to ensure compliance and consistency.
How 3CS can help
3CS helps employers create fair, lawful recruitment practices that align with immigration and employment law. We review job adverts, assess sponsorship risks, and provide clear guidance on when and how to sponsor workers. Our team ensures you stay compliant while attracting the right talent.
To learn more about how we can support your recruitment and compliance needs, please contact our experienced immigration and employment team.
