UK: A Red, White And Blue Brexit

Last Updated: 17 May 2017
Article by Daniel Geey

In the post-Brexit referendum aftermath, there has been plenty of speculation as to its impact on particular industries including sport and football in particular. My previous pre-Brexit referendum blog, I set out what the implications may be for a Brexit vote. Almost a year on, I provide some high level thoughts on the next step on the road to a Red, White and Blue footballing Brexit.

Work Permits

Once Brexit became a reality, the ideas of what a soft or hard Brexit began to be debated and questioned. The overriding play-off appeared to relate to leaving the free market at the expense of having complete control over immigration.

At the time of writing (pre-2017 election), the signal from Government is that it is prioritising immigration control over free trade. The Government White Paper specifically states that:

"in future we must ensure we can control the number of people coming to the UK from the EU."

This would appear incompatible with the fundamental EU right to work in another EU country.

I had previously written that "it remains unlikely that the same work permit principles which currently apply to non-European Economic Area (EEA) workers would similarly apply to EEA workers post-Brexit." With a hard-line approach being taken, unless a deal is concluded with the EU, it is not beyond the realms of possibility that EU citizens will have to go through the same process as non-EEA workers if the UK Government is serious about reducing net migration.

In an excellent Economist article, the actual net migration figure (for EU and non-EU workers) was framed as three times the attendance at a Manchester United football match (under 300,000). This is apparently evenly split between EU and non-EU citizens. The next bit was the interesting section which stated:

"About half of the EU nationals emigrating to Britain move into less-skilled jobs. Cutting that sort might reduce net migration by EU workers to 50,000 (a slowing economy is already helping). Halving net migration of foreign students, say by restricting the growth of universities (though that would hamper a lucrative industry), might reduce it to 50,000. But that might still leave total net migration at around 150,000. If the government is serious about hitting its tens-of-thousands target, it may have to restrict skilled migration. That would sit oddly alongside its recent white paper on Brexit, which promised to "encourage the brightest and the best to come to this country"."

In addition:

"It may be for that reason that David Davis, the Brexit secretary, [in February] hinted that Britain is not about to shut the door even on unskilled EU migrants."

This somewhat contradictory approach to immigration post-Brexit will no doubt cause problems when balancing the need to attract talented foreigners whilst having to potentially reduce even skilled migration (to get the net migration figures to Government target levels).

This is without taking into account lobbying that is no doubt going on behind the scenes from particular sectors worried out Brexit's impact on their industries including leaders in finance, technology, agriculture, hospitality, construction and manufacturing.

This context is important because even though non-UK footballers will likely be deemed skilled 'immigrants', if the Government's overall rhetoric is to significantly reduce net migration, many industries will lobby and push for exemptions or greater relaxation of the general rule, which could make reaching the Government's net target more difficult.

In addition, the complexities of any negotiation may actually lead to a much longer lead in time for new rules to be incorporated than initially thought. Although March 2019 is the two year cut off point, it is now accepted that:

"a trade deal with the EU cannot enter into force before Britain leaves (even if she clings to the fantasy that its full details may be worked out in advance). That means some sort of bridging arrangement will be needed, perhaps lasting two or three years, during which Mrs May has hinted that Britain could accept the rules of the single market, including the free movement of EU workers."

If so, the ability of EU citizen footballers to move to the UK to play football may still be possible in even 2020 or 2021. This potentially means visas for EU footballers to play in the UK may still be 3-4 years away.

No Deal

Teresa May has also explicitly set out that "no deal is better than a bad deal" . This effectively signals that if no agreement is in place when the UK leaves the EU, the non-EEA work permit default position presumably applies. This will restrict the calibre of EU citizen players that will be able to enter the UK. The Home Office and FA resources that will be needed to deal with foreign players wishing to apply for a visa to play in the UK will be significant.

How the Government tries to untangle competing sector interests to ensure a relatively fluid stream of skilled and talented EU citizen workers into the UK is unclear. My best assumption remains that a tiered player immigration approach is still the most likely.

  1. The strongest restrictions will continue for non-EEA players (see my blog on the recent changes here).
  2. Depending on the UK government/EU negotiation outcomes) a second, mid-way category is applied (if a full deal or interim deal is struck) where EU citizens will be in a more privileged position because of the concessions that the UK government will have to make on various trade and free movement issues.
  3. The third category will be UK born players who will be in the most favoured category because of the ease with which they can be employed by clubs.

A major overhaul of the work permit regulations for EU players would be required; the question is when they would need to be drafted and implemented. One likely outcome is to make elite UK born players more valuable because of the ease that they can be employed without any visa and/or administrative application process to follow.

Quotas

Currently, until Brexit occurs, EU citizens cannot be discriminated against on the basis of nationality. That was very much one of the core Bosman messages when UEFA has previously imposed nationality quotas on teams playing in their competitions. Post-Brexit, nationality restrictions may become possible. Indeed, Football Association Chairman Greg Dyke explained that:

"Fewer home-grown players than ever started matches in the Premier League last year. Although I was not a supporter of Brexit, it could be that by leaving the EU this problem could be solved.

If the FA and the government were to have the determination to restrict the flow of European players coming to play in Britain to the very best and introduce quotas on the number of British players in Premier League sides it could be changed quickly."

This opens up the possibility of the FA introducing quotas for English players. Mr Dyke's position is presumably that discriminating against non-UK nationals through for example nationality quotas would promote the national team thus exposing more English players to top level football. Premier League clubs would certainly not want to be restricted in their ability to pick only a certain number of English/UK born players for the simple reason that it would reduce the ease of recruiting top class European players. Mr Dyke's view is that:

"At the moment many very average European players are increasingly taking the slots which could be going to talented young English players from clubs' academies."

This suggests that reducing the number of non-international football players who are EU citizens will increase the number of academy players in a team's squad and first team.

There had previously been a FIFA driven proposal for a 6+5 rule to be imposed. That was shot down in part after liaising with the EU because of concerns that such regulations would have been illegal (see here for more detail). Post-Brexit however, whilst it would be politically difficult for the FA to impose direct nationality restrictions on the Premier League and Football League, it could potentially implement such regulations across its own FA Cup competition.

Conclusion

The next few months will be instructive. A comprehensive Tory victory in the general election should give Mrs May the mandate and authority to push for her vision of Brexit. At present, that seems to be on the harsher scale of favouring immigration over trade. That balancing act when negotiating with EU stakeholders will hold the key to understanding how Government will control the ability of skilled workers including footballers to play in the UK post-Brexit.

www.danielgeey.com
www.twitter.com/FootballLaw

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