Under the current UK immigration system, athletes regularly face being denied entry on arrival or being delayed at the border for failing to take into account immigration requirements. Yet the immigration issues facing sports organisations and employers are set to intensify as Brexit and the introduction of a new immigration system take effect. We look at the key immigration and visa issues affecting both long-term stays (eg footballers staying to perform a five year contract) and shorter visits (eg tennis players staying for a few days/weeks to compete in a tournament).
End of EU free movement
The UK will adopt a new immigration system post-Brexit, under which free movement of European nationals and their family members will cease. From 1 February 2020, the UK will be in a transition period until the end of 2020, during which free movement will continue, and European citizens in the UK will be required to register for EU settled status to safeguard their immigration rights once the UK formally leaves the EU and the transition period ends. Free movement will end completely from January 2021. All British employers, including those in the sports sector, will be affected by these changes.
The implementation of a new immigration system after 2020 may mean that European players will have to obtain a “governing body endorsement” (GBE) to transfer to an English club, as is currently the position for non-European players. A GBE is currently only issued in respect of “elite players”. This usually involves showing that they have international caps or a high market value.
In recent weeks, the FA has proposed a cut in the number of foreign players allowed in Premier League squads post-Brexit. From the proposals, it seems that if a player has a contract, he will be granted a GBE and given permission to play in England. This is different to the current system, which requires clubs to show the player is “elite”. The Premier League certainly wants its clubs to have the ability to sign players from anywhere in the world without restrictions on quality or qualification. It will be interesting to see how these proposals move forward, which may potentially put football clubs at odds with other employers in the UK (which can only recruit foreign workers if they meet salary and qualification thresholds).
Rugby and cricket quotas
Away from football, a new immigration system may also affect quotas in rugby and cricket. In 2003, the European Court of Justice (ECJ) said that citizens of countries that have signed EU Association Agreements have the same right to free movement in the EU as Europeans. Therefore, restrictions on their right to work (such as quotas on foreign players) would be unlawful. This is the “Kolpak” loophole that has allowed many rugby and cricket clubs to sign players from countries such as South Africa, Tonga, Fiji and Samoa. However, following the end of the Brexit transition period, free movement – and presumably Kolpak – will end in the UK. It will be interesting to see how the RFU and ECB approach foreign quotas in a post-free movement UK.
During the transition period, there remain three possible relevant routes to the UK: Visitor; Tier 2 sportsperson; or Tier 5 temporary worker sporting sub-category. Choosing between them will depend on whether the activity you wish to undertake in the UK amounts to work (paid or unpaid) and the duration of your stay.
The standard visitor is a popular route for an athlete who is only coming to the UK to:
- take part in a sports tournament or sports event as an individual or part of a team (this excludes participating in a professional domestic championship or league as this is regarded as employment);
- make personal appearances and take part in promotional activities;
- take part in trials provided you are not in front of a paying audience;
- take part in short periods of training provided you are not being paid by a UK sporting body;
- join an amateur team or club to gain experience in a particular sport provided you are an “amateur” in that sport.
The Permitted Paid Engagement is a sub-category of the Visitor visa under which professional athletes can enter the UK to carry out an activity related to their profession and be paid. It is only available to “professional” athletes, the activity must relate to the athlete’s profession, you must be invited by a sports organisation , agent or broadcaster based in the UK and the maximum period of stay is one month.
The athlete’s personal or technical staff employed by them overseas can enter under the visitor route to support their activities provided they are attending the same event. This is applicable if the athlete is entering under either the standard or permitted paid engagement visitor route.
The Tier 2 (Sportsperson) and Tier 5 (Temporary Worker – Sporting) are available to a professional athlete (and their staff) who will be coming to the UK to take up sponsored employment provided the criteria are met.
Most immigration categories now have a prohibition on undertaking employment as a professional sportsperson (including as a sports coach). However, it may be that your family circumstances qualify you to enter under other immigration routes.
DavidsonMorris are established advisers to the sports sector. As employer solutions lawyers, we work with education providers and institutions to support with their full people requirements including immigration & employment legal advice and global mobility & human resource consultancy.
We understand the commercial and legal challenges facing employers in the sector, and work to support our clients in meeting their people management and planning needs while reducing legal risk exposure. Contact our sports sector specialists today.
Last updated: 2nd January 2020