Immigration in sport - a brave new world for regulators
By Michael Bradshaw and Jonathan Ellis, Charles Russell LLP
The UK’s sporting regulatory bodies come in all shapes and sizes. They range from large corporate style organisations with funding and budgets to match, through to much smaller affairs aimed at meeting the basic needs of the sport they represent and manage.
However, since 27 November 2008 they have each taken on responsibilities under the UK immigration system, which will significantly add to their regulatory functions. In many ways they now out as an extension of the Home Office. Throughout 2008, the Government was busy overhauling the UK immigration system. In place of a multitude of categories and rules, a single 5 tier points-based system was introduced. It is modelled on the immigration system of countries such as Australia. For sportspersons, it consolidates long and short-term working visa options. At the same time, the Government also changed the rules on visitors’ visas which are crucial to the sporting industry in respect of one off events, tournaments or a series of events over a short period. The rules cover anyone coming from outside the European Economic Area.
Previously, the Home Office had exclusive responsibility for administering the immigration system in respect of sports. In drawing up the rules that applied to the different sports, and often in making decisions, they consulted with the relevant sporting bodies, but it made the decisions. However that has now changed.
How the system works
Under the new 5 tier system, the system of work permits has been removed and replaced by Tiers 2 and 5. Tier 2 is for a longer-term stay in the UK, where the initial period granted will be 3 years, whereas Tier 5 is for temporary workers in the UK and covers them up to 24 months.
Under both Tier 2 and Tier 5, an individual sportsperson requires a “Certificate of Sponsorship” to be issued by their intended employer in the UK. To issue a Certificate of Sponsorship the intended employer must be registered with the Home Office as a sponsor under the immigration system. It will need to be endorsed by the employer’s governing body to become registered. It must then satisfy itself that the criteria for issuing a Certificate of Sponsorship can be met. For a sportsperson, this requires the individual to be ”endorsed” by the employer’s regulatory body.
To obtain an endorsement, the sponsoring employer must approach the regulatory body and present the individual’s credentials. The regulatory body must then assess the individual against the criteria, which it has drawn up in consultation with the Home Office. If the regulatory body decides that the criteria are not met, it must refuse the application and not issue the endorsement. Without the endorsement, the individual will not be able to progress their immigration application and will not be able to come to the UK. However, where an endorsement has been granted, there is no other qualitative assessment of the individual sportsperson’s credentials (for immigration purposes).
A word of caution for regulators
The decision making process needs to be open and fair and based on published criteria alone. There should be no room for decisions made on a discretionary basis where the criteria have not been met. Such decisions risk a breach of their responsibilities.
Due to the importance of this role to an individual’s right or otherwise to enter the UK, the regulatory bodies must ensure there are appropriate decision making processes in place and checks against abuse or conflicts of interest. They are required to put in place dispute resolution procedures to allow individuals to contest their decisions. The Home Office will not arbitrate on decisions or otherwise get involved. It follows that it will be the regulatory bodies that will have to face down the wrath (and legal teams) of disgruntled sporting employers if a decision does not go their way.
Each regulator also has to Register to a code of practice and agree to cooperate with Home Office enquiries and investigations to ensure they are carrying out their role as required.
Administering these aspects of the UK immigration system therefore has a considerable time and cost consequence for the regulatory bodies, which some may not be as well placed to burden as others.
In exchange for this increased responsibility, the regulatory bodies have been given a greater scope to determine and run the immigration rules that apply to their sports; it is therefore anticipated that the immigration system will be able to adapt to the needs of individual sports far more rapidly than previously.
A sting in the tail
Aside from the regulatory issues, a detail in the introduction of Tier 2 might also give rise to another cause for concern for many sports. Tier 2 includes a requirement that a foreign national coming to the UK under Tier 2 must have basic English language skills. The level of English required is fairly basic but in most cases, in order to be able to satisfy the rules and get a visa, the individual will have to sit (and pass!) a formal English language exam.
Overall, 2008 was an unprecedented year in terms of changes to the UK immigration system and these changes will continue throughout 2009. The UK sporting regulatory bodies have a central role to play in this new system, which goes far beyond their experience to date. In exchange, they have been given the opportunity to deliver an immigration system much closer to the needs of their particular sports. It remains to be seen whether this is a fair deal.
Article obtained from www.charlesrussell.co.uk the website of Charles Russell LLP. Article reproduced with their kind permission.
Michael Bradshaw, Partner
Jon Ellis, Solicitor
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