Many immigration categories contain a condition of stay which prohibits the individual from undertaking activities in the UK of a ‘professional sportsperson’. The Home Office has recently widened the definition of the activities that may fall within this prohibition. We are therefore concerned that this may increase the risk of accidental breaches.
In the latest Statement of Changes in Immigration Rules which we covered here, the definition of a professional sportsperson was amended and significantly expanded. The changes came into force on 10 January 2019.
Our concern relates to individuals who are in the UK in an immigration category which includes a condition of stay restricting them from performing work as a professional sportsperson. They will need to ensure that they do not perform any of the activities contained in the new definition. If the Home Office alleges that a breach of a condition of stay has occurred, this can potentially lead to the curtailment of leave and removal from the UK.
The following are some of the categories that restrict the individual from performing activities contained in the definition of a professional sportsperson:
- Tier 4
- Tier 1 Investor
- Tier 1 Exceptional Talent
- Tier 1 Entrepreneur
- Tier 2 and Tier 5 (unless the Certificate of Sponsorship has been assigned in accordance with the rules for sportspersons)
The new definition of professional sportsperson
The new definition can be found in paragraph 6 of the Immigration Rules. It is also referred to in the relevant guidance document for the appropriate category (for example, see paragraph 320 of the Tier 4 Policy Guidance).
It states that:
‘A “Professional Sportsperson”, is someone, whether paid or unpaid, who:
- is currently providing services as a sportsperson, playing or coaching in any capacity, at a professional or semi-professional level of sport;
- is currently receiving payment, including payment in kind, for playing or coaching that is covering all, or the majority of, their costs for travelling to, and living in the UK, or who has done so within the previous four years;
- is currently registered to a professional or semi-professional sports team, or who has been so registered within the previous four years. This includes all academy and development team age groups;
- has represented their nation or national team within the previous two years, including all youth and development age groups from under 17’s upwards;
- has represented their state or regional team within the previous two years, including all youth and development age groups from under 17’s upwards;
- has an established international reputation in their chosen field of sport;
- engages an agent or representative, with the aim of finding opportunities as a sportsperson and/or developing a current or future career as a sportsperson, or has engaged such an agent in the last 12 months;
- is providing services as a sportsperson or coach at any level of sport, unless they are doing so as an “Amateur” in a charity event.’
This new definition removes the previous requirement that a professional sportsperson must be someone who has derived, or is seeking to derive, a living from such activities.
There is a risk, therefore, that a person who holds leave in an immigration category that restricts work as a professional sportsperson, and who performs any of the above activities even without deriving a living from them, is breaching the conditions of their stay in the UK.
Paragraph 6 of the Immigration Rules also defines Amateur sportspersons, as follows:
‘An “Amateur” is a person who engages in a sport or creative activity solely for personal enjoyment and who is not seeking to derive a living from the activity. This also includes a person playing or coaching in a charity game.’
The definition of an amateur sportsperson has not changed so individuals may still argue that they are engaging in the sport ‘solely for personal enjoyment’. However, some of the scenarios in the new professional sportsperson definition now conflict with the amateur sportsperson definition so a cautious approach should be taken.
Potential breaches including some sports courses
The risk that an accidental breach may occur is potentially high in our view.
For example, a person in the UK under a category of leave restricting work as a professional sportsperson, who provides amateur coaching at a non-charity event such as a local youth football match, may be undertaking scenario eight of the professional sportsperson definition. This may be so even though the individual may be performing this service ‘solely for personal enjoyment’.
The changes are also likely to be of concern in relation to international students who are enrolled on sports courses. Many universities, for example, offer a range of sports-related degrees, some of which include work placements designed to enable students to gain hands-on experience in activities which now fall under the new definition.
There are similar rules prohibiting work in the UK as an entertainer. However, the Home Office has provided an exception for international students who will perform otherwise prohibited work as part of a work placement element of a dance or music degree-level course. This therefore allows them to gain essential experience of performances, etc.
We would urge the Home Office to provide an explanation as to the activities that are, and are not, covered by the new definition and/or to revise the definition. At the very least, a number of exceptions should be allowed.
We are not aware of the Home Office engaging with the education sector in relation to these changes and we can find no published justification for them. The Explanatory Memorandum accompanying the Statement of Changes simply states that:
‘The definition of ‘professional sportsperson’ has been updated. This update sets out more explicitly the indicators that will be considered when assessing whether a migrant is playing sport in a capacity, other than that of an ‘amateur’.
Check if conditions of stay have been imposed lawfully
If the Home Office alleged that a person had breached this condition of stay, in the first instance it would be important to check that correct procedure had been followed in imposing conditions. If a condition has not been imposed in a lawful manner, the individual should be able to successfully challenge such an allegation. We cover this in more detail here.
Tier 2 (Sportsperson) and Tier 5 (Creative and Sporting)
Professional sporting or coaching can be carried out by a person who holds leave under Tier 2 (Sportsperson) or Tier 5 (Creative and Sporting). A professional sportsperson can apply under these categories if they are sponsored by an organisation which holds a Tier 2 or Tier 5 licence allowing them to sponsor sportspersons.
The sponsor will need to issue a Certificate of Sponsorship to the applicant and also receive an endorsement from the relevant Sports Governing Body confirming that the applicant:
- is internationally established at the highest level;
- their employment will make a significant contribution to the development of the sport at the highest level in the UK, and;
- the post could not be filled by a suitable settled worker.
Specific applications would need to be made to both the Sports Governing Body and the Home Office and applicants will also have to meet the above updated definition of a professional sportsperson.
If the Home Office does not change the definition or provide exceptions, it is likely that there will be an increase in the use of this category.
Those sponsored under these categories can also study. Universities and other education providers offering sports-related courses to international students that contain elements that may fall under the revised criteria may need to consider if sponsorship under Tier 2 or 5 is possible. However, sponsorship under these categories requires a number of other requirements to be met so may not be suitable in all cases.
How we can help
If you would like to discuss the above definition further, or need assistance with any aspect of a Tier 2 (Sportsperson) and Tier 5 (Creative and Sporting) application, please contact us.