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Brexit uncertainty – immigration update for the sports industry

Posted: 05/11/2018

With less than five months to go until we exit from the EU on 29 March 2019, uncertainty still shrouds the potential impact Brexit will have on the sports industry and the country as a whole.

What we know so far

The UK and the EU are yet to finalise their negotiations on the terms of the UK’s withdrawal and it is looking more likely that this will need to be extended.

Until the UK exits from the EU, freedom of movement and EU law will continue to apply. This includes the ability to travel, reside and work freely in any member state.

EU Settlement Scheme
In preparation for exiting the EU, the UK has already introduced the EU Settlement Scheme. The scheme will provide a basis on which EU citizens residing in the UK and their family members can apply for a status under UK immigration law. It has just started its second test phase, which is due to end on 21 December 2018, with full rollout expected by March 2019 - at which point athletes and their families should be able to apply.

The scheme will only be based on residence so there is no requirement on EU nationals to demonstrate that they have been exercising treaty rights in the UK (eg by working). Those who have been resident in the UK for five years will get 'settled status' and those who are yet to complete five years will get ‘pre-settled status’.

Even though the process for application is supposed to be quick and easy, given that there are 3.6 million EU nationals in the UK, the deadline for making an application is not until 30 June 2021. 

Deal or no deal?
The withdrawal deal is still being negotiated and there has been much speculation on the impact of a no deal, with some worried about the impact of this on for example the summer 2019 transfer window.

Remaining positive - If a deal is reached then under the current terms of the withdrawal agreement, freedom of movement will continue until 31 December 2020 and EU nationals entering the UK by 23:59 on 31 December 2020 will be protected by the terms of the withdrawal agreement.

Succumbing to negativity – There is currently no mechanism that will allow the Government, the border force, employers, landlords etc to differentiate between an EU national resident in the UK pre 29 March 2019 and those entering the UK post 29 March 2019. As such, the Home Secretary has confirmed that, even in the event of a no deal, freedom of movement as a matter of practicality will need to continue during a “sensible transition period”.

Therefore deal or no deal, there should be no cliff edge on 30 March 2019 and the summer 2019 transfer window should not be impacted. How long a transition period, in the event of a no deal, will last is anybody’s guess.

To note, the withdrawal agreement does not currently include Norway, Liechtenstein, Iceland, or Switzerland and separate negotiations are being held with these countries. 

UK immigration after December 2020

The Government stated that it was awaiting the publication of the Migration Advisory Committee’s (MAC) final report on EEA migration in the UK before publishing the Immigration Bill outlining the UK’s future immigration system. However, the MAC’s report came out in September 2018 and the Immigration Bill has still not been published.

It is anticipated that the Government will implement the MAC’s recommendations and not give preferential treatment to EU nationals. The report does not make a specific mention on possible immigration options for those in sport. Instead its general recommendation was that the UK should focus on enabling higher-skilled migration coupled with a more restrictive policy on lower-skilled migration in the design of its post-Brexit system. Whilst this may mean that the entry of top athletes will still be facilitated, access for lower skilled workers who support sport as a business may be restricted.

The current immigration system applicable to non-EEA athletes/coaches is a points based one requiring sponsorship. The criteria is highly selective requiring athletes to be internationally established at the highest level as well as meeting the specific criteria for the particular sport. 

If the Government decides to apply the current immigration system to EU nationals, then given the restrictions in place this could have a severe impact on the sports industry. For example English clubs may no longer be able to benefit from the EU/EEA exception to FIFA’s general rule which prohibits the international transfers of players under the age of 18.

Sport and sport related activity are a major contributor to the UK economy, generating gross value added of £20.3 billion in England alone (1.9% of England’s total) and supporting over 400,000 full time equivalent jobs (2.3% of all jobs in England). Therefore any new immigration system will need to ensure that it does not introduce barriers which will negatively impact this sector and stifle its growth. 

Immediate steps

For those EU athletes/workers in the sports sector, the advice is to check their current circumstances and seek legal guidance if they are concerned as to the implications of Brexit, especially for those who may not be residing in the UK before 31 December 2020. Consideration should be given as to whether to make an application now for permanent residency/British citizenship or whether an application under the EU Settlement Scheme should be made sooner or later to protect their position.

For those looking to move to the UK post-Brexit, it is important to keep abreast of the withdrawal negotiations as they unfold to determine how they are likely to be affected. 

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