Football Transfers After Brexit

The Brexit implementation period started on 31 January 2020 and ends on 31 December 2020. Until the end of that implementation period, freedom of movement continues and European Economic Area (“EEA”) nationals have the right to live and work in the United Kingdom.[1] Under this current system, EEA nationals acquire an ‘extended right of residence’ in the UK if they fall within the definition of a ‘qualified person’.[2] A ‘qualified person’ includes, amongst others, a ‘worker’.[3] Further, EEA nationals that have lived in the UK for five years as a ‘qualified person’ acquire a ‘right of permanent residence’ in the UK.[4] In summary, these rights allow such EEA nationals to work and reside in the UK without the need to have their entitlement to work in the UK determined by the UK’s points-based system and the granting of a visa.

Such freedom of movement is beneficial for footballer players and coaches that are EEA nationals that want to play or coach at a club in the United Kingdom. However, those rights are not set to continue after 31 December 2020. New players and coaches that are EEA Nationals (except Irish nationals) coming to the UK to work will be required thereafter to have their entitlement to work in the UK determined by the UK’s points-based system (“PBS”). Accordingly, players and coaches that are EEA nationals will be treated in the same way as non-EEA nationals.

EEA Nationals – players and coaches already in the UK

EEA nationals residing in the UK by 31 December 2020 can make an application to remain in the UK indefinitely under the EU Settlement Scheme, with such applications to be made by 30 June 2021 (again, Irish nationals will not be required to do this).[5] Pursuant to the Immigration Rules, Appendix EU, EEA nationals who have resided in the UK for a continuous period of at least five years are eligible to apply for indefinite leave to remain in the UK, for example someone who has a ‘right of permanent residence’. This is known as “settled status”. Further, EEA nationals who have resided in the UK for a period of less than five years but who would otherwise be eligible to apply for indefinite leave to remain can apply for leave to remain in the UK. This is known as “pre-settled status”. Those who obtain pre-settled status can complete the five-year continuous residence requirement to become eligible for indefinite leave to remain. An individual having either settled or pre-settled status will have the right to work in the UK.

Accordingly, football clubs employing EEA nationals as players or coaches beyond 31 December 2020 should be liaising with those individuals to ensure that they receive appropriate legal advice and make the appropriate application under the EU Settlement Scheme.

Current system for non-EEA nationals

Presently, all foreign nationals or who are non-EEA Nationals are required to obtain a visa to work in the UK. To obtain a visa foreign nationals are required to obtain the relevant visa in accordance with the PBS. The PBS is operated by the Home Office’s UK Visas and Immigration department. The PBS consists of five tiers, with each tier having different points requirements ‘to reflect [the foreign national’s] ability, experience, age, and, where appropriate, the level of need within the sector in which the [foreign national] will be working’.[6] The two tiers relevant for this article are:

• Tier 2 (Sportsperson): this is for elite sportspeople and coaches who are internationally established at the highest level and whose employment will make a significant contribution to the development of their sport at the highest level in the UK, and who will base themselves in the UK; and

• Tier 5 (Temporary Worker – Creative and Sporting): this is for sportspeople, entertainers or creative artists who have been offered work in the UK for up to 12 months.

To obtain a Tier 2 (Sportsperson) or Tier 5 (Temporary Worker – Creative and Sporting) visa, foreign nationals must be sponsored by their employer, that is: the football club they will be playing or coaching for.

For a football club to be a sponsor for a foreign national, the football club must hold a Tier 2 (Sportsperson) or Tier 5 (Temporary Worker – Creative and Sporting) sponsor licence. For a football club to hold such a sponsor licence, the football club must submit an online sponsor licence application, which must include (i) specified documents; and (ii) be endorsed by The FA if based in England, The FA of Wales if based in Wales or by the Scottish FA if based in Scotland (these bodies are the Home Office’s approved governing bodies for football in their respective country), which confirms that the football club is genuine and has a legitimate requirement to bring migrants to the UK as sportspeople. All applications for such a sponsor licence must meet eligibility and suitability criteria, which, in summary are that the football club is: (i) a genuine organisation operating lawfully in the UK; (ii) honest, dependable and reliable; and (iii) capable of complying with its sponsor duties (as detailed in this guidance). There is also a fee payable for a sponsor licence application. If a football club is successful in its application for a sponsor licence, the football club – the company entity of the football club – will be added to the Home Office’s register of sponsors. 

When a football club has a sponsor licence, and as a prerequisite to that football club assigning a Certificate of Sponsorship to the foreign national it seeks to employ as a player or coach, the football club must obtain governing body endorsement from the relevant governing body on behalf of the foreign national.[7] Focusing on England: a football club in England seeking to employ a foreign national as a player or coach must hold a sponsor licence and obtain a governing body endorsement (“GBE”) on behalf of that foreign national from The FA. It should be noted that only football clubs of the FA Premier League (“PL”), the English Football League (“EFL”), the FA Women’s Super League (“FAWSL”) and the FA Women’s Championship (“FAWC”) can hold a sponsor licence and subsequently apply for a GBE from The FA.

In order for a football club to obtain a GBE from The FA on behalf of the foreign national it seeks to employ as player or coach, that football club must demonstrate that the foreign national satisfies The FA’s criteria agreed by the Home Office. The FA’s GBE criteria and application forms for PL, EFL, FAWSL and FAWC players, and PL, EFL, FAWSL and FAWC coaches can be found here.

Focusing on PL or EFL football club seeking to employ a foreign national as a player, The FA’s GBE criteria for PL and EFL players requires the following:

Automatic Criteria: a player must be able to demonstrate that he has participated in a ‘Required percentage’ of senior competitive international matches played by the player’s national association during the ‘Reference Period’.[8]

The ‘Required Percentage’ varies depending upon the ranking of the player’s national association in the Aggregated FIFA World Rankings. So, for example, the ‘Required Percentage’ in respect of a national association ranked between 1 and 10 of the Aggregated FIFA World Rankings is 30%, whereas the ‘Required Percentage’ in respect of a national association ranked between 31 and 50 is 75% and above. For players over the age of 21, the ‘Reference Period’ is the 24-month period preceding the date of the GBE application. For players aged 21 and under, the ‘Reference Period’ is the 12-month period preceding the date of the GBE application.[9]

If a player satisfies this criteria, then The FA will automatically grant a player a GBE under either Tier 2 (Sportsperson) or Tier 5 (Temporary Worker – Creative and Sporting) of the PBS.[10]

There is a fee of £500 plus VAT payable for an application for a GBE.[11]

Discretionary Criteria: if a player does not meet the automatic criteria, then the football club ‘can request that an Exceptions Panel consider the player’s experience and value in order to determine whether [a GBE] should… be granted’.[12]

The Exceptions Panel will be made up of three members appointed by The FA, and will consist of an independent, legally qualified chair and two ‘additional independent panel members having relevant experience at the top level of the game’.[13]

The Exceptions Panel will consider the application in accordance with the guidance in Appendix 1 of the GBE Criteria for Players (PL and EFL Players), and upon the papers submitted to it.[14] Written submissions may be made by The FA and/or other relevant interested parties (the PL, EFL or the Professional Footballers’ Association) in advance of the Exceptions Panel’s decision.[15] An oral hearing of the application may be requested but only in the most exceptional circumstances.[16]

Whether or not an Exceptions Panel decides to grant a GBE is entirely at the Exceptions Panel’s discretion.[17] In coming to its decision, the Exceptions Panel will carry out an ‘objective and subjective review’.[18]

The objective part of the review is split in to Part A and Part B criteria and sees the player scoring points in respect of, amongst others: (i) the transfer fee being paid; (ii) the wages being paid to the player; (iii) what league the player’s current football club plays in and the number of minutes that the player has played in that league; and (iv) whether the player’s current club has played in a ‘Continental Competition’ and the number of minutes that the player has played in that competition.

If the player scores four points or more against the objective Part A criteria, then the review will move to the subjective part of the review. In this part of the review, the Exceptions Panel will consider the information presented by the football club and any other information to determine ‘whether the player is of sufficient quality to justify it recommending that a GBE be awarded’.[19]

If the player scores fewer than four points against the objective Part A criteria, then the Exceptions Panel will firstly consider the player against the objective Part B criteria and will then move to the subjective part of the review. In this part of the review, if the player has scored fewer than four points against the Objective Part A criteria and a cumulative total score of fewer than five points under the objective Part A and Part B criteria, the Exceptions Panel will consider the information presented by the football club and any other information to determine ‘whether he player is internationally established at the highest level and that his employment will make a significant contribution to the development of football at the highest level in England’.[20] If the Exceptions Panel is not satisfied of this then it is guided to refuse a GBE.[21]

Decisions of the Exceptions Panel are reached by a simple majority, and written reasons for the decision will be provided by the Exceptions Panel to the applicant football club.[22]

In addition to the application fee, there is a fee of £5,000 plus VAT payable if an application requires consideration from an Exceptions Panel.[23]

If an application is unsuccessful before an Exceptions Panel, a further Exceptions Panel cannot be requested for the same player by the same club within four months of the original Exceptions Panel decision.

Generally: whether following a GBE being given upon the automatic criteria or discretionary criteria, a GBE can only be given for the shorter of three years or the length of the player’s contract in respect of a Tier 2 (Sportsperson) visa, or the shorter of 12 months or the length of a player’s contract in respect of a Tier 5 (Temporary Worker – Creative and Sporting) visa.[24] If the football club seeks to employ the foreign national as a player beyond the duration of the existing GBE, then the football club must submit a new application for a new GBE before expiration of the existing GBE.[25]

Once a GBE is given, the football club can assign a Certificate of Sponsorship to the foreign national it seeks to employ as a player by using the Sponsorship Management System. The foreign national will then be in a position to apply for a Tier 2 (Sportsperson) or Tier 5 (Temporary Worker – Creative and Sporting) visa to enter the UK. It should be noted that once a GBE is given, then an application for a visa must be made within three months of the Certificate of Sponsorship (“CoS”) being assigned to the player.[26]

However, the requirements to be satisfied by a foreign national that a football club seeks to employ as a player do not end there. Tier 2 (Sportsperson) and Tier 5 (Temporary Worker – Creative and Sporting) visa applications have their own eligibility criteria as part of the PBS:

• Tier 2 (Sportsperson): the player must score a minimum of 70 points across three areas.[27] Firstly, the player will score 50 points for holding a Tier 2 (Sportsperson) CoS.[28] Secondly, the player must score at least 10 points for English language. The player must have a knowledge of English equivalent to level A1 or above of the Council of Europe’s Common European Framework for Language Learning. This can be evidenced by, amongst other things, passing an English language test, or if the national is from a majority English-speaking country such as Australia, Jamaica or the USA.[29] Thirdly, the player must score 10 points for maintenance funds. The player must have held £945 for the 90-day period before the application is made, or alternatively the football club (if it is an A-rated sponsor, which it is likely to be) can certify on the CoS that it will maintain and accommodate the player up to the end of the first month of their employment.[30]

• Tier 5 (Temporary Worker – Creative and Sporting): the player must score a minimum of 40 points across two areas.[31] Firstly, the player will score 30 points for holding a Tier 5 (Temporary Worker – Creative and Sporting) CoS.[32] Secondly, the player must score 10 points for maintenance funds, with the same requirements as those seen for Tier 2 (Sports Person).[33] Notably, there is no English language requirement. A Tier 5 (Temporary Worker – Creative and Sporting) visa can be used as an initial visa by a foreign national player who needs time to satisfy the English language requirement and to then be in a position to go through the visa application process again (i.e. obtaining a new GBE and CoS) for a Tier 2 (Sportsperson) visa.[34]

If a player is successful in their application for a Tier 2 (Sportsperson) or Tier 5 (Temporary Work – Creative and Sporting) they will be granted leave for the appropriate period that the GBE provides for and will be eligible to work in the UK. Proof of such eligibility is required for a player to be registered with the PL and the EFL.[35]

EEA Nationals from 1 January 2021

One immediate change that will take effect from 1 January 2021 is that football clubs will be unable to sign EEA nationals aged between 16 and 18. FIFA’s Regulations on the Status and Transfers of Players (“RSTP”), article 19(1) prohibits the international transfers of players unless they are over the age of 18. While RSTP, article 19(2)(b) provides an exception to that rule for transfers between EEA states, the UK will no longer benefit from that exception from 1 January 2021.

However, and again focusing on players, there is an element of uncertainty as to what the position will be generally for football clubs wishing to employ an EEA national as a player from 1 January 2021. As noted above, freedom of movement to the UK for EEA nationals will end on 31 December 2020 and they will be treated equally as non-EEA nationals.

The FA’s current GBE criteria for players and coaches states that it is effective until 31 December 2020. There is no indication yet of what The FA’s GBE criteria will be from 1 January 2020 when it will be required to consider EEA nationals and non-EEA nationals equally. It has been reported (£) that The FA is required to submit to the Home Office its recommended GBE criteria to be applied from 1 January 2021 by the end of this week. That same report also identifies that there is a real chance of The FA submitting to the Home Office its current GBE criteria as its proposed model in an attempt to focus Premier League clubs’ attention to developing homegrown talent. That possibility could explain transfers such as Wolverhampton Wanderers FC’s signing of 18-year-old, Portuguese Fabio Silva during the 2020 summer registration period.

If The FA’s GBE criteria are unchanged when it is to be applied to EEA nationals and non-EEA nationals equally, there will be ‘a negative impact on the number of European players entering the English game’.[36] It will be just as difficult for European talent as it is for non-EEA nationals to clear The FA’s GBE high threshold, and football clubs will have to face up to the additional formalities required to complete the transfers of a player from an EEA state. Additionally, and worryingly, The FA’s GBE criteria currently states that ‘The FA expects Exceptions Panels and the ability to request them, to be removed as of 1 February 2021’. If Exceptions Panels are removed following the January 2021 transfer window and if The FA’s GBE criteria are unchanged, then thereafter unless a foreign player satisfies the automatic criteria football clubs will be unable apply to and try to persuade an Exceptions Panel to grant a GBE.

With just under two months to go until the end of the Brexit implementation period, and considering The FA’s deadline with the Home Office referred to above, some clarity on this issue can be expected shortly. As things stand, the forecast looks bleak for football clubs’ prospects of signing budding European players but this could be a opportune moment for homegrown players in the normal sense of the phrase.

Footnotes

[1] Directive 2004/38/EC; The Immigration (European Economic Area) Regulations 2016. ‘EEA National’ is defined in The Immigration (European Economic Area) Regulations 2016, regulation 2(1).

[2] The Immigration (European Economic Area) Regulations 2016, regulations 6(1) and 14.

[3] (n2), regulation 4(1), Treaty on the Functioning of the European Union, Article 45.

[4] (n2), regulation 15(1).

[5] UK-EU Withdrawal Agreement, Article 18(1)(b).

[6] Tolley’s Employment Handbook, 33rd Edn (LexisNexis Butterworths, 2019), 27.4.

[7] Tier 2 of the Points Based System – Policy Guidance, Part 4, paragraphs 121-122; Tier 5 Temporary Worker of the Points Based System, paragraphs 25-26.

[8] GBE Criteria for Players (PL and EFL Players), paragraph 2.1.

[9] Ibid, glossary. Cf: Ibid, paragraph 2.3.

[10] (n8).

[11] Ibid, paragraph 4.

[12] Ibid, paragraph 2.1.

[13] Ibid, paragraphs 2.2.1-2.2.2.

[14] Ibid, paragraphs 2.2.9 and 2.2.12.

[15] Ibid, paragraph 2.2.10.

[16] Ibid, paragraph 2.2.12.

[17] Ibid, Appendix A, paragraph 1.

[18] Ibid, Appendix A, paragraph 2.

[19] Ibid, Appendix A, paragraph 4.1.

[20] Ibid, Appendix A, paragraph 4.2.

[21] Ibid, Appendix A, paragraph 5.

[22] Ibid, paragraph 2.2.14.

[23] Ibid, paragraph 4.

[24] Ibid, paragraph 3.1.

[25] Ibid, paragraph 3.2. NB: Leave to remain cannot be granted for more than six years (Immigration Rules, Part 6A, paragraph 245HE(a)) but a player can apply for indefinite leave to remain in the UK after five years’ continuous residence in the UK under a Tier 2 (Sportsperson) visa (see Indefinite leave to remain: calculating continuous period in UK).

[26] Ibid, paragraph. 1.4.

[27] Immigration Rules, Part 6A: the points-based system, paragraph 245HB(d), (e) and (f).

[28] Immigration Rules, Appendix A, paragraphs 93-100.

[29] Immigration Rules, Appendix B.

[30] Immigration Rules, Appendix C, Tier 2 Migrants.

[31] (n27), paragraph 245ZO(b) and (c).

[32] (n28), paragraphs 105-112.

[33] (n30), Tier 5 (Temporary Worker) Migrants.

[34] (n8), paragraph 3.3.

[35] The Premier League Rules, rule U.13; EFL Regulations, regulation 46.5.

[36] The FA Report and Financial Statement 2019, page 26.

26 October 2020