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Serge Aurier and visas for footballers after Brexit

Serge Aurier and visas for footballers after Brexit

What are the immigration rules for footballers from outside the EU? And what rules will apply to footballer transfers from abroad after Brexit? Here we look at the immigration aspects of football transfers using the recent successful but fraught transfer of Serge Aurier from Paris Saint-Germain to Tottenham Hotspur.

Aurier is a particularly useful case study for two reasons. Firstly, he is a non-EU national, so he requires a visa to enter and work in the UK. After Brexit, the default position – unless some sort of special exception is made – is that these rules will apply to all footballers, so Aurier is doubly useful in that sense. Secondly, there were genuine uncertainties as to whether he would be granted a visa (sometimes termed a ‘work permit’) after being handed a suspended sentence in France for assaulting a police officer, reduced to a fine on appeal. Ultimately, his visa was granted before the transfer window deadline, allowing him to complete his £23 million transfer.

As we will see, though, Aurier’s transfer fee, wages, and the stature of PSG as a club competing in Ligue 1 and the Champions League allowed him to qualify for a visa. There are EU players recruited to the Premier League who would not necessarily qualify under the full international rules. N’Golo Kanté helped Leicester win their league title in 2016 but as a young Frenchman had never played for his national team. After Brexit, future Kantés would be at risk of exclusion from the Premiership.

Visas for non EU footballers

Footballers can choose, typically, between three types of visa:

  • Tier 2 (Sportsperson)
  • Tier 5 (Temporary Worker – Creative and sporting)
  • Tier 1

The first two are the ‘Tier 2 (Sportsperson)’ visa and the ‘Tier 5 (Temporary Worker – Creative and Sporting)’ visa. These two, which for ease of reference will be termed ‘Sportsperson’ visas, have a common basis: the applicant is an elite sportsperson. The difference is that the player needs to pass the Home Office English language requirement to qualify for the Tier 2 visa, which lasts for a maximum of three years. Otherwise they must apply for the Tier 5 visa which only lasts for a maximum of one year. For more, see this helpful page.

A third option is to apply for a ‘Tier 1’ visa (leave to enter on such visas is usually granted to entrepreneurs or investors), on the basis that the footballer in question is a high-value individual whose entry into the UK will support the UK economy. This article will focus on the ‘Sportsperson’ visas, but the rules on criminal offences are apply equally to all of them.

The Home Office will not issue a ‘Sportsperson’ visa to a footballer unless they have a Governing Body Endorsement from the FA. The FA’s criteria require that the player represented their country in competitive matches a certain percentage of the time, outlined in the table below.

Official FIFA RankingRequired % of competitive international matches played in the 2 years prior to application
1-1030% and above
11-2045% and above
21-3060% and above
31-5075% and above

Below are three case studies which illustrate how the above rules work:

Case study 1: Neymar

Let us suppose Neymar were applying for a visa to join a Premier League team on 1 August 2017. Brazil are ranked #1 in the world in 2017, so Neymar would need to have played only in 30% of competitive international matches from 1 August 2015. Neymar played in 10 of 17 competitive international fixtures (World Cup qualifying and Copa America) during that period. Therefore he would obtain a Governing Body Endorsement.

Case study 2: N'Golo Kanté from Caen to Leicester City post-Brexit

N’Golo Kanté is a French national, and so was able to join Leicester City without needing a visa. Yet by August 2015, when the 24 year-old transferred to Leicester City, he had never played a competitive match for France. Therefore a player in the same situation as Kanté post-Brexit would need to make an appeal via the Exceptions Panel. This panel considers objective criteria including as the player’s transfer value, wages, and club level, before conducting a subjective consideration: for full details, see this excellent explanation.

Case study 3: Serge Aurier

Côte d’Ivoire are currently ranked #54 in the world. Therefore it would appear he would have needed to appeal to the Exceptions Panel. Given his transfer fee, his wages, and the stature of Paris Saint-Germain as a club playing in Ligue 1 and the Champions League, he was always likely to pass the Exceptions Panel criteria – which would appear to have happened given his transfer went through.

The kink in Serge Aurier’s application: General Grounds for Refusal

So far so good for Serge Aurier. However, he was handed a two month suspended prison sentence in September 2016 for assaulting a police officer. This resulted in the Home Office refusing to grant a visa for him to enter the UK to play a Champions League fixture Paris Saint-Germain at Arsenal in November.

The Immigration Rules tell us when the Home Office must refuse an application for leave to enter the UK, and when they may do so. For an excellent post covering discretionary grounds for refusal in full detail, see the Free Movement guide to general grounds for refusal.

General grounds for refusal: criminal convictions, public good, character, conduct and associations

If Aurier had actually been sentenced to immediate imprisonment, then the Home Office would have a mandatory ground of refusal: they would have no discretion but to refuse the application. In the case of a suspended sentence, the Home Office has a discretion whether or not to allow the application. However, the relevant section of the Immigration Rules states that such applications should “normally” be refused.

Aurier’s suspended sentence was reduced on appeal to a fine. This would not appear to fundamentally change his legal position, though, as fines are treated as discretionary grounds for refusal in the same way that suspended sentences are. It would seem therefore that the positive features of his case outweighed the presumption of refusal. The lowering of his sentence cannot have harmed his application, though. If the conviction itself had been quashed on appeal, then there would have been no ground under this part of the Immigration Rules to refuse him entry.

The Home Office should ‘normally’ refuse an application is where an applicant has ‘poor character, conduct or associations’ – the only other paragraph which could theoretically be considered in the Aurier case. Guiding the discretion of the Home Office. Guiding the discretion of the Home Office is the following broad paragraph:

To decide if a refusal under this category is appropriate you must consider if there is any reliable evidence to support a decision that the person’s behaviour calls into question their character, conduct and/or associations to the extent that it is undesirable to allow them to enter or remain in the UK.

The Home Office do provide examples of what circumstances may trigger this ground for refusal – a flavour of these is given below:

  • Where admitting the person to the UK would adversely affect foreign policy;
  • The person has committed war crimes;
  • The person is a national security threat;
  • Admitting the person would likely lead to a breach of public order – the ground upon which the rapper Tyler, the Creator, was barred from the UK;
  • Admitting the person may lead to an offence being committed by someone else – for example, the applicant may have extreme views which if expressed could result in civil unrest and a breach of the law;
  • Expressing views glorifying or fomenting terrorist violence.

As reprehensible as insulting your manager in a video using a derogatory and homophobic term is, the above types of behaviour are in a different league to this. Rightly, it appears not to have been a problem for Serge Aurier.

The Home Office in the end granted Aurier a visa to enter the UK, and he is now a Tottenham Hotspur player. This provides an insight into how the FA Governing Body Endorsement system and the Immigration Rules apply in practice. I hope this article has helped you understand the basics of the visa system for non-EU footballers, and lead to more informed discussion of when a player might be at risk of being refused a visa – and when they are all but guaranteed to succeed in their application.

Paul Erdunast
LLM student at Cambridge University. Formerly a full-time Education and Community Care Paralegal at Just for Kids Law, Intern at Hackney Community Law Centre and Legal Caseworker at the AIRE Centre. GDL graduate from City University. Previously studied Classics at Worcester College, Oxford. Interested in immigration, asylum and refugee law and policy.

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