IRB eligibility criteria & immigration rules for sportspersons
The recent controversy surrounding the injury-forced retirement of England rugby international, Hendre Fourie, and the immigration complications arising as a result has sparked considerable debate. The case drew attention to contentious issues including the eligibility criteria for international rugby and the application of UK immigration rules to high profile sportsmen and women from outside the European Union (who do not possess UK nationality).
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Andrew is a barrister practising from 11KBW in London. He is ranked as a leading sports and employment law barrister by Chambers & Partners and Legal 500.
Notwithstanding the UKBA's immigration rules, is this not more appropriately a matter of EU law and the rights that flow to Fourie from same? (Zambrano case)
As I’m sure you will be aware, the essence of the Zambrano judgment was that:
"..Article 20 TFEU [Treaty on the Functioning of the European Union] is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State..." (para. 45 of the CJEU’s ruling)
At a domestic level, the Immigration (EEA) Amendment (No 2) Regulations 2012 came into force on 8 November 2012; the purpose of this statutory instrument, according to paragraph 7.2 of its Explanatory Memorandum, was (inter alia):
“…in order to give effect to the ECJ judgment of Ruiz Zambrano. That judgment created a further derivative right to enter and reside for the primary carer of an EU citizen who is living in his/her own country and where a refusal to confer such a right would force the EU citizen to leave the EEA. In the United Kingdom, the judgment therefore enables the primary carer of a British citizen to acquire a right to enter and reside in the UK whilst they remain the primary carer of that British citizen and where the refusal of such a right would force the British citizen to leave the EEA.”
Perhaps unsurprisingly, the UK government has adopted a fairly narrow interpretation of the CJEU’s decision in Zambrano; and it may be that this is subject to challenge in due course. However, what is clear is that in order for the ‘Zambrano principle’ to bite, there must be a dependent who is a citizen of an EU Member State. The short point, I think, with regard to the Fourie case is that I am not aware Fourie’s young son – whilst born in the UK – is in fact a British citizen.
The British Nationality Act 1981 provides various possible bases for registration as a British citizen. On the facts of this case, it seems to me that a section 3 (1) application would have been the appropriate route for Fourie Jr. – i.e. children born in the United Kingdom to parents who are not settled in the United Kingdom and are not British citizens. Registration in this category is at the UKBA’s / Home Office’s discretion, if deemed reasonable under the circumstances. I am not aware that any such application was ever submitted on behalf of Fourie Jr. by his parents; and/or granted was by the UKBA / Home Office.
It would be pretty surprising if Fourie’s lawyers had missed the Zambrano point altogether (if in fact Fourie Jr. had obtained UK citizenship by the time Fourie’s employment contract was terminated by Sale), although not of course impossible!
Finally, the Zambrano case does not answer wider point discussed in the article – namely whether there should be some kind of specific exemption in the UK Immigration Rules for national sporting representatives who are not themselves UK citizens; and if so, how such an exemption should be framed.