The immigration implications of Brexit could be set to have a major effect on Premier League and EFL clubs.
It is without question that the political and socio-economic forces of Brexit will reshape the landscape of football in England. The UK has now formally left the European Union (EU) and we are currently in a transition period, with “business as usual” until 31 December 2020. Thereafter, free movement for all EU nationals (apart from the Irish who are subject to different rules), including professional sports people, will come to an end. After this date, EU nationals will then be subject to the same visa requirements as their non-EU counterparts.
We hope that this article helps highlight some of the key issues facing football clubs, their players and their non-playing staff employees ahead of, and in some instances beyond, 31 December 2020. In this article, we will consider:
- Immigration implications before and after the transition period, in particular the importance of Settled Status and Pre-Settled Status;
- “Work Permits”, Certificates of Sponsorship and Governing Body Endorsement; and
- The Impact of Brexit on youth recruitment and development.
Immigration implications before and after the transition period
EU nationals already present in the UK before 31 December 2020:
As a result of the freedoms that we have become so accustomed to, many EU nationals have already made their lives in the UK whilst it was a member of the EU. In recognition of this factor, the Government has outlined that those EU nationals (including players and non-playing staff (as well as coaches, scouts, club executives, sporting and football directors, sports scientists, doctors and other club operational personnel)) who are residing in the UK prior to 31 December 2020, will be able to continue to live and work in the UK so long as they apply for (and successfully obtain) Settled Status, under the EU Settlement Scheme (the Scheme).
It is of paramount importance that clubs are aware of the fact that the deadline for applications under the Scheme is 30 June 2021.
When applying under the Scheme, any individual who can establish 5 years’ continuous residence (which usually means establishing at least 6 months’ residence in the UK in any 12 month period in the UK over a total five year period prior to the cut-off date of 31 December 2020) will be granted Settled Status. Anyone who cannot meet this requirement, but is nevertheless eligible under the Scheme, will be awarded Pre-Settled Status.
Those players and non-playing staff who obtain Settled Status will establish their rights to continue living and working in the UK indefinitely, so long as they are not absent from the UK for a five year period. Additionally, those with Settled Status may also apply for British Citizenship 1 year after they have received Settled Status (assuming the relevant criteria in place at the time is met).
On the other hand, Pre-Settled Status gives EU nationals a continued right to live and work in the UK whilst it remains valid. Nevertheless, this visa status is slightly more precarious, as it lapses after 2 years’ absence from the UK.
By way of an illustrative example: a Premier League club could sign an EU player in this summer’s transfer window, who subsequently applies for Pre-Settled Status upon arrival at the club (as he has arrived in the UK prior to 31 December 2020). In the same transfer window, that player is loaned out for a 12-month period (for the purpose of gaining playing experience and, of course, in accordance with Article 5bis of the FIFA Regulations on the Status and Transfer of Players (RSTP), regarding the presumption of a bridge transfer) to a club affiliated to another national association. The player in question wouldn’t lose his Pre-Settled status as, under the Scheme, he is permitted to spend up to 2 years in a row outside of the UK.
Nonetheless, matters become more complicated for those individuals who want to go from Pre-Settled Status to Settled Status at the end of their Pre-Settled Status visa. Those individuals will need to keep a close eye on the overarching continuous residence requirements (i.e. by ensuring no more than 6 months’ of absence in any 12 month period during a 5 year period) before they apply for Settled Status. Practically, this might prove more challenging especially where lengthy international loan deals are involved.
Clubs need to be acutely aware of the fact that Settled Status and Pre-Settled Status are not optional applications; it is a mandatory requirement to obtain this visa status in line with the deadline stipulated above. Failure to do so will potentially result in individuals being in the UK illegally and clubs employing them unlawfully (leaving a club wide open to the potential of fines and other criminal sanctions, as well as the prospect of still having to honour contractual obligations to the individual, not to mention the potential reputational damage). Those individuals without the required visa status could also face deportation.
With the above points in mind, clubs should now be actively communicating to their players and non-playing staff about the Scheme. Clubs should be mindful, however, that giving immigration advice is a regulated activity and so they need to be careful not to advise players and non-playing staff unless they hold appropriate qualifications to do so; failing to comply with this requirement is potentially a criminal offence.
Equally, clubs ought to give thought to the fact that EU players with Pre-Settled or Settled Status will no doubt have more options available to them in terms of transfers (permanent or otherwise) and, as a result, clubs could even demand a higher transfer value for them.
EU nationals arriving after 1 January 2021
The Government has recently announced proposals for the new immigration regime, which will apply after the end of the Brexit transition period. Although the details remain incomplete, it has confirmed that, with effect from 1 January 2021, the visa requirements will apply to EU and non-EU nationals alike.
Work Permits/Certificates of Sponsorship and Governing Body Endorsement
Free movement is a crucial aspect of the modern game across Europe. For the last 40 years, EU players have been at liberty to come and play football in the UK, using their rights of freedom of movement, whereas non-EU players, wanting to play in the UK, have typically required a Tier 2/Tier 5 visa or “work permit”.
However, the impact of Brexit will mean that EU players and non-EU players must be treated the same with respect to immigration. Ultimately, from 1 January 2021, EU players will require a work permit in order to be employed and play football in the UK. The most significant impact of Brexit therefore is the bearing that it will have on player transfers and movement.
As things stand, in order to obtain a work permit, clubs need to obtain a Sponsor Licence under Tier 2 and/or Tier 5 of the UK’s Points Based System. This involves obtaining approval from the Home Office and a Governing Body Endorsement (GBE) from The FA. Once obtained, a Sponsor Licence essentially provides eligibility to football clubs to assign Certificates of Sponsorship to players (this is the employer side of the work permit requirements).
Non-EU national players and non-playing staff then have to secure their own GBE before they are able to submit a visa application. Their visa will be only be granted if they meet both the GBE and visa eligibility requirements.
Focusing on the player side, players are only eligible to obtain a GBE if they meet specific prescribed requirements that demonstrate that they are an elite player who is internationally established at the highest level, and where their employment will make a significant contribution to the development of football at the highest levels in England.
These requirements are prescriptive and extensive. Players are automatically eligible for this in certain situations for example if they meet certain criteria based on the proportion of their national team's competitive games that they have taken part in, in the last 2 years. How often they need to have played depends on the rank of their national team in the FIFA World Rankings. It is therefore relatively simple to calculate who qualifies for an automatic GBE under the current criteria. Clubs should undertake their due diligence in this respect and be confident that a target will qualify for a GBE.
In terms of non-playing staff, The FA stipulates a number of pre-requisites that must be fulfilled before any application for a GBE for a manager and/or an assistant manager is submitted. For a manager, the first pre-requisite is that they must have (or will have) overall responsibility (which means the ultimate responsibility and decision making authority for the first team and first team selection) and that they hold a UEFA professional licence/diploma or equivalent. For an assistant manager, joint or partial responsibility for the first team squad is the required threshold and they must hold a UEFA ‘A’ licence/diploma or equivalent.
Provided the pre-requisite conditions are fulfilled, the current criteria outlines that The FA will automatically grant a manager, or an assistant manager, a GBE if the applicant club is able to demonstrate that the individual has managed (in the capacity of a manager or assistant manager) a club in a “top league” (which includes the 6 European leagues and the 2 Central and South American leagues that have provided the most players to the top 20 squads in the FIFA World Rankings, at the relevant point in time) for at least 36 months or a consecutive period of 24 months within the 5 year period immediately before seeking a GBE. Alternatively, a club must show that the manager and/or assistant manager has managed an international team for the prescribed period of time and, that during the entirety of that time, the international team was placed 50 or above in the FIFA World Rankings.
Clubs are reminded that The FA also has a GBE criteria in place for directors of football. Similar to that of the player endorsement, a GBE will only be issued to those directors of football of the highest calibre, who are able to make a significant contribution (in footballing terms) to the development of the game at the highest level (i.e. clubs competing in the Premier League and EFL).
Notwithstanding the above, The FA has confirmed that the current GBE criteria will apply for part of the 2020/2021 season and will be effective through to December 2020 (when the transition period comes to an end). The FA has also stated that the GBE criteria is subject to an ongoing review in order that a revised criteria may be issued by 31 December 2020 (which would inevitably come into effect for the remainder of the 2020/2021 season). The FA has given no indication as to what those revisions (if at all any) will look like.
For the avoidance of doubt, the GBE criteria for managers, assistant managers and directors of football may also be subject to change prior to 31 December 2020, which would then be operative for the remainder of the 2020/2021 season.
Undoubtedly, the additional legal requirements will impact on the British professional football leagues. In 2016, the BBC established that 332 EU players in the Premier League, Championship and Scottish Premiership would not have satisfied the existing requirements for sponsorship.
Similarly, research conducted by Harvard University concluded that 591 of the 1,022 EU players signed by Premier League clubs from 1992-2018 would not have been eligible for a work permit had they been treated as non-EU players.
What if a player is unable to meet the criteria?
Under current rules, if a player does not qualify under the above criteria then a club can appeal to the Exceptions Panel, arguing that the player’s value and experience mean that they should be granted a GBE. At that stage, the Exceptions Panel operates a points-based system, rewarding high transfer fees, wages and experience in important competitions such as UEFA’s Champions League. The Exceptions Panel may then award a GBE if the player has the required points, but this is discretionary (and not guaranteed, even if the points criteria are met), meaning it is difficult to predict if a certain player would get a work permit.
Likewise, in the event that a manager and/or assistant manager does not meet the automatic criteria for a GBE, then the applicant club can request that the Exceptions Panel consider the Manager’s skill and experience in order to determine whether a GBE should nevertheless be granted. Where a director of football does not meet the published criteria then a club may request an appeal panel to consider the individual’s skills and experience.
However, it is important to note that the FA has confirmed that it expects the Exceptions Panel to be removed as of the winter transfer window of the 2020/2021 season (although, this will be kept under review and reflected, as appropriate, in the revised criteria). In the event it is removed, this will mean that clubs will no longer have the wriggle room to petition for players or managerial staff to be granted GBE where they don’t meet the strict requirements; potentially a worrying development for clubs.
Historically, some clubs have navigated difficulties posed by the need to obtain work permits by signing non-EU players and loaning them out to other European clubs to gain the requisite experience before bringing them back to England to play. The Mexican national, Carlos Vela at Arsenal is a notable example. Going forwards, this could increasingly become the norm for European players as well.
Are there any other options?
For those players who do not meet the GBE criteria for a work permit, and where there are no family based routes available that would give individuals the ability to live and work in the UK, clubs may be inclined to consider using the “visitor” route. Although some sporting activities are permitted under this route, the visitor route is unlikely to present a solution to the potential problems. The biggest issue is that, if an individual is being employed as a professional sports person by a team based in the UK then any visitor application should be refused. Clearly this will apply to all Premier League and EFL players, which will mean that they are ineligible to use the visitor route.
Youth Recruitment and Development
Brexit will have a particular impact on the ability of English clubs to recruit youth players from Europe, especially those between the ages of 16 and 18 years old.
Article 19 of the RSTP prohibits the international transfer of players below the age of 18, save for certain exceptions. One of these exceptions occurs where:
“The transfer takes place within the territory of the European Union (EU) or European Economic Area (EEA) and the player is aged between 16 and 18.”
English clubs have reportedly been reassured by FIFA that they will continue to enjoy the benefit of the above exception until the end of the transition period. However, beyond 31 December 2020, it is inevitable that the international transfer of minors will be prohibited for English clubs and, as a result, English clubs will be placed at a competitive disadvantage when compared with their European rival clubs, in terms of recruitment of young and emerging European talent.
While this will significantly limit the scope of clubs’ youth recruitment policies, The FA has identified Brexit as a chance to create more opportunities for British talent in the Premier League and EFL. Ultimately, The FA believes that increased English participation in the English professional leagues will improve the English national team.
The current “home-grown” rule is part of the Premier League’s Elite Player Performance Plan. This rule provides that the maximum number of non-home-grown players in any squad is 17. A “home-grown” player is currently defined as one who has been registered with The FA for at least 3 years before they turn 21, regardless of nationality. Premier League teams can, however, use as many under-21 players as they like in addition to their main squad regardless of nationality.
The FA has indicated an intention to reduce the maximum number of non-home-grown players allowed in each team’s 25-player squad from 17 to 13 post-Brexit and to increase the number of home-grown players from 8 to 12. However, The FA and Premier League are yet to come to an agreement on the specifics of any increased quota.
Brexit is an entirely different prospect at different ends of the Premier League and EFL spectrums and immigration changes will automatically reduce the availability of young talent across Europe. Inevitably, this means that clubs will need to adapt recruitment strategies. There will no doubt continue to be an incentive to train, develop and provide a pathway for youth players into the first team squad and with Brexit likely to make the path to employing non-UK players more restrictive, perhaps clubs will look to academy graduates as an easier, more financially viable and practical option than that of navigating nuanced and complex employment restrictions.
Conclusion
Brexit means that clubs will have to navigate through potentially uncertain and possibly volatile terrain. The international dimension of the Premier League is arguably one of its greatest assets; it has become a global repository of talent.
However, as the days, weeks, months and years unfold, the full impact of Brexit on football will no doubt become clear. We are looking at a new political and footballing landscape from 1 January 2021, one which presents challenges and opportunities in equal measure.
Takeaway Points:
- Clubs should familiarise themselves with the details of the EU Settlement Scheme and, if they aren’t already doing so, they should be communicating with their employees (players and non-playing staff) so that they understand the need to make applications under the EU Settlement Scheme well in advance of the deadline of 30 June 2021. Ideally, we would recommend these applications are made in advance of the end of this year when the Brexit transition period ends.
- In the run up to 31 December 2020, continually check to see whether The FA has announced any amendments to GBE criteria for players and non-playing staff as any changes would then be operative for the remainder of the 2020/2021 season.
- Should they wish to do so, clubs should act fast in order to finalise international transfers in this summer’s transfer window (bearing in mind that it is the last window before the new immigration rules come into play) in order to avoid the scenario whereby a desired transfer is no longer possible after 31 December 2020.
- Clubs’ recruitment and academy departments should continually assess the impact that Brexit will have on their youth recruitment and development strategies, whilst keeping a close eye on any developments concerning the home-grown rule.
