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Brexit, COVID-19 and Immigration - A Premier (League) Update

Posted on 08 July 2020

Following the onset of COVID-19, the English Premier League was in recovery for just over three months. After a lengthy consultation, the powers-to-be deemed the sport fit to resume play on 17 June. With a hard Brexit looming in the shadows from 31 December 2020, this could mean further disruption and uncertainty for the most popular league in the world. This whistle-stop tour will cover two key immigration issues surrounding the English Premier League, Brexit, and COVID-19: travel and transfers.

Travel

The UK Government announced that, from 8 June 2020, anyone entering or returning to the UK will be required to self-isolate for 14 days. There are a number of exemptions from this requirement, but none officially allows athletes or sporting spectators to bypass 14 days of quarantine.

Issues - Professionals

The transfer window will be open soon. Football clubs in the UK can then register new players to bolster their squads. In this inaugural transfer window following COVID-19, and likely the last transfer window before the end of the Brexit transition period, clubs in the UK may face a number of challenges to get their targets over the line. The requirement to self-isolate on entry to the UK could mean that transfers are delayed. Scouting and core staff will have to carefully consider if, and when, they should travel. Clubs will have to think creatively to ensure medicals, promotional material, and the all-important signatures are completed before the player enters the UK and is required to self-isolate. Players will also want to ensure their transfer is finalised before travelling to the UK and self-isolating for 14-days.

Footballers and key staff at clubs should also be grounded until the 2019/20 season has been completed. Premier League clubs will have to complete at least 92 matches by August, so a key member of the team travelling and then being required to self-isolate for 14 days could derail a season. Accordingly, teams will have to carefully balance the needs of any key staff who are required to travel with the obligation to self-isolate on return to the UK.

Clubs as a whole may also be adversely impacted by the requirement to self-isolate. Manchester City and Chelsea will be vying for the Champions League which is scheduled to return on 7 August. Whereas Manchester United and Wolves are still competing for the Europa League which is set to return on 5 August. If this requirement is still in place, the remaining English clubs could be forced to stay overseas until the conclusion of their respective campaigns.

Issues - Spectators

The situation surrounding spectators in stadiums is changing rapidly. As the lockdown eases across Europe, we are seeing provisions to allow attendance at stadiums - albeit with reduced capacity. In the UK, Surrey County Cricket Club has announced that it is planning to stage cricket at the Oval at a reduced capacity. Accordingly, the requirement to self-isolate on entry to the UK means that fans travelling overseas to see their favourite teams will have to plan an extra-long trip, or simply avoid the UK until the policy is relaxed.

Going forward

The UK Government has confirmed that it will keep this policy under review, with revisions made every three weeks. Indeed, Formula 1 has apparently already been assured by the UK Government that its planned race in August 2020 will be granted an exemption from the self-isolation rules. Perhaps the UK Government will issue footballers and football clubs with a similar exemption – but this cannot be guaranteed. Until this is clarified, football clubs and players will have to plan any travel carefully to ensure they do not fall foul of these requirements. Although the financial penalty (£1,000) is relatively minor for these parties, the adverse media coverage could be damning as we have seen for the Government's top advisors.

Transfers

We are sure it has taken many by surprise, but Brexit is looming around the corner and we are yet to receive any clarity on the UK's new Points Based System for footballers. The UK's current immigration system is one of the most restrictive in Europe, whereby footballers from outside of Europe must satisfy a number of strict criteria to play for a club in the UK.

As an overview of the current immigration system, non-European footballers must be endorsed by the Football Association to obtain a visa. The endorsement test requires that:

  • the sponsoring club must be in the Premier or Football league, and
  • the player must have participated in a minimum percentage of their home country's senior competitive international matches for the previous two years, or previous one year if the player is under 21.

The percentages are based on their country's official FIFA World Rankings. For example, a 19 year old from Brazil (ranked 3rd) will only have to appear in 30% of Brazil's competitive international matches to qualify. Whereas a 19 year old from Korea (ranked 40) will have to appear in 75% of Korea's competitive international matches to qualify.

If the player fails to satisfy either of these tests, the club can appeal to the Exceptions Panel. Here, the player and transfer itself are assessed on a number of factors. For instance, the transfer fee paid, the player's weekly wages, and the player's participation in his current domestic league and international club competitions, all influence whether or not an endorsement will be issued.

The new rules could drastically change these requirements, but they could just as easily be minor adjustments to bring European players into the same sphere as non-Europeans.

Issues

As the rules currently stand, European players are not impacted by the UK's strict immigration system as they benefit from free movement – i.e. the ability to live and work anywhere in the European Economic Area. This means that clubs in the UK can scout and sign players across Europe without worrying about work permits. This has benefited football in the UK as it has allowed clubs to scout from a population of over 500 million, compared to the 66 million in the UK.

Once free movement ends, European footballers may have to satisfy the same strict criteria as their non-European colleagues if they wish to play in the UK. This is unlikely to impact the in favour superstars of European national teams as they are generally playing at the highest level. However, players who are perhaps out of favour with their national teams, are late bloomers, or are just solid squad players, may struggle to secure a visa if they had to go through the process now.

The ability of UK clubs to sign European youth players aged between 16 and 18 is likely to be removed. UK employment law and FIFA regulations currently permit players to sign their first deal at 16 and then their professional contract at 17. This means that clubs in the UK can currently take advantage of stricter employment laws in other jurisdictions. For example, in Spain, players must wait until they are 18 to sign a contract, which has led to infamous coups like Fabregas to Arsenal. Following Brexit, UK clubs may lose this privilege and miss youth signings to clubs in Europe.

Going forward

This could be the last transfer window before Brexit unless the transition period is extended, which the Government has said it will not do. Regardless, as the key stakeholders are still at an impasse over the solution to the issue of post-Brexit visas for footballers, we consider a few options that clubs and players in the UK and Europe can proactively do to secure their positions:

Summer Transfers – The uncertainty of the visa position for European footballers after Brexit means that clubs in the UK could mount a spending spree before Brexit. This will help ensure they have secured the signatures of their preferred European talents. Although this is ultimately a short-term strategy, investing now means that teams should have sufficient depth for the near and long-term future if they scout appropriately. However, there may be a limited appetite to spend as a result of the economic impact of, and uncertainty surrounding, COVID-19.

Settled Status – Clubs across Europe with footballers residing in the UK should advise their players to apply under the UK Government's European Settlement Scheme. This is a scheme whereby European nationals can obtain a Pre-Settled Status (a five-year visa) or Settled Status (indefinite leave to remain) to lawfully remain in the UK following Brexit. As long as the European player is residing in the UK before 31 December 2020 and the application is submitted before 30 June 2021, the player should be allowed to preserve their position as a European national who has the legal right to live and work in the UK. Once the visa is issued, players can then spend up to two years in a row outside the UK without losing Pre-Settled Status. However, if the individual's ultimate goal is to obtain Settled Status, then they would need to spend at least six months of the year in the UK for five years. Importantly, non-European players could also benefit from the European Settlement Scheme if they are married or in a durable relationship with a European national. European footballers with Pre-Settled or Settled Status would not need to apply for a post-Brexit footballer visa as they would already have the legal right to work in the UK. Accordingly, European footballers with Pre-Settled or Settled Status should have more options for the future and could even demand a higher transfer value.

Loans – Clubs could take a mixture of the above two approaches to help plan for their near to mid-term future. For instance, Premier League Clubs could sign a European player, register him under the European Settlement Scheme, and then loan him to a club in Europe to gain experience. If in a few years he is ready for the first team, he could then return to living full-time in the UK and work without a post-Brexit footballer visa. Importantly, he should still hold Pre-Settled Status and be on the path to Settled Status if he has been returning to and residing in the UK frequently (at least six months in every year) during the period of his loan as detailed above.

Following Brexit, the situation will be more complex. European players will likely have to satisfy the strict rules for non-European nationals. Clubs could try to bolster their chances of obtaining an endorsement by offering higher transfer fees and salaries to earn more points with the Exceptions Panel (as it currently stands). However, is this the correct approach? Should clubs feel the pulse of the nation and promote British talent?

As the doors to Europe close, there is a strong sentiment in the Football Association that clubs should promote home grown talent. The Football Association has called for the minimum number of home grown players to increase from 8 to 13 in each 25-player squad. This should have the effect of increasing the opportunities for British players which should benefit our four national teams. This has been met with resistance from the Premier League as it may make clubs less competitive. Ultimately, we anticipate that Premier League teams will nurture home grown talent as the financial appetite and risks of signing foreign players may be too great following both COVID-19 and Brexit.

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