Select Committee on Education and Employment Minutes of Evidence


Memorandum from the Department for Education and Employment (WP 4)

LEGISLATION

  1.  The work permit scheme is administered by the Department for Education and Employment's Overseas Labour Service (OLS) in accordance with the Immigration Act 1971 and the Immigration Rules. The Home Office is responsible for all immigration matters. The OLS administers the work permit scheme. This covers employers based in England, Scotland and Wales. Work permits for Northern Ireland, the Isle of Man, Jersey and the Channel Islands are handled by separate departments in each of those locations.

EXEMPTION CATEGORIES

  2.  The following people do not need work permits:

    (a)  European Economic Area (EEA) nationals—member countries are: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Holland, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Norway, Portugal, Spain, Sweden, United Kingdom (free movement of workers within the EEA is derived from Article 39 of the consolidated version of the Treaty on European Union);

    (b)  Those born in Gibraltar;

    (c)  Commonwealth citizens who are allowed to enter or to remain in the UK on the basis that a grandparent was born here;

    (d)  Husbands, wives and dependent children under 18 of people who hold a current work permit as long as the endorsement in their passport places no restriction on their employment here;

    (e)  Those who do not have any conditions attached to their stay in the UK.

  3.  Additionally, permits are not required where the Home Office agree that the person is either;

    (i)  An entertainer or sportsperson participating in a benefit match or charity event for which there is no fee, or taking part in international competitions.

    (ii)  An entertainer or sportsperson attending a trial or audition which does not involve a performance to a fee-paying audience. (Paid rehearsals do require a permit).

  4.  A person who is not in one of the groups described above will normally need a work permit. The Home Office, Immigration and Nationality Directorate are responsible for issuing advice on whether or not a work permit is required (The DfEE do not decide whether a person needs permission to work in this country). Advice is also available from UK Government representatives overseas: the British Embassy, Consulate or High Commission.

NON-EEA NATIONALS

  5.  A footballer who is not from a country listed in (2a) above will require a work permit to play in the UK unless one of the listed exemption categories applies. If an application is successful and immigration requirements are satisfied the individual will be granted permission to enter the country to play professional football.

  6.  It should also be noted that some South American and African players are able to enter the UK and play for a club without a work permit because they also hold a passport of one of the EEA countries.

APPLYING FOR A WORK PERMIT

  7.  A football club, or their representative, based in the UK who wishes to submit a work permit application in respect of a non-EEA professional footballer completes a WP3 application form (see Annex A)[1] The form and associated Guidance Notes (see Annex B)[2] are available to the clubs from a publicised forms distribution unit or by downloading from the DfEE Internet site (www.dfee.gov.uk/ols). There is no cost attached to either.

  8.  The Guidance Notes provide general information for employers on the criteria for applications in respect of entertainers and sportspeople. They also provide advice on how and when to apply for a work permit and details of the service standards to which OLS operates. More specific criteria that apply to footballers (see below) are distributed annually to the Premier League and Football League representatives in England and Scotland who are asked to make all their respective member clubs aware of the arrangements.

  9.  A club applying for a work permit sends the completed application form to the Sports and Entertainments Team at the OLS in Sheffield who acknowledge receipt of it within five working days. The OLS consider the application according to the work permit criteria and aim to make a decision on it by the date requested. It is easier to do this if the club has included in the application all the relevant information required to reach a decision. OLS aims to reach a decision on all cases within four weeks of receipt of the work permit application.

  10.  The Guidance Notes also inform clubs that applications for people already in the UK may take longer. The immigration Rules require a person needing a work permit to have the document before entering the country. At the port of entry an immigration officer is required to stamp the passport of the individual who presents the work permit. This stamp shows the time limit and restrictions on the employment.

  If the person is already in the UK the OLS will forward details of their decision on the work permit application to the Home Office, Immigration and Nationality Directorate. The Home Office will then consider whether the person can change their immigration status to that of a work permit holder and will write to both the employer and the Overseas national with their decision.

CRITERIA FOR NON-EEA FOOTBALLERS

  11.  The current criteria for non-EEA footballers were announced in a joint statement (see Annex C) on 2 July 1999 by Margaret Hodge, the Minister responsible for work permit arrangements and Tony Banks, the then Minister for Sport.

  12.  Work permits are issued to football clubs in respect of players of the highest calibre who are able to make a significant contribution to the development of the British game at its highest level. The highest level of the British game is deemed to be those clubs competing in the Premier and Football Leagues in England and Scotland.

  13.  The two main elements of the criteria are:

    —  A player must have played for his country in at least 75 per cent of its competitive "A" team matches for which he was available for selection during the two years preceding the date of the work permit application; and

    —  The FIFA ranking of the player's country must be at or above 70th place in the official rankings list when averaged over the two years preceding the date of the application.

  14.  The new criteria for the 1999-2000 season are set out in Annex D. Copies were sent to all the UK football governing bodies, namely the Football Associations, Premier Leagues, Football Leagues and professional Football Associations in England and Scotland (and the FA in Wales) on the 16 July 1999.

  15.  The criteria are designed to assist clubs by introducing a more consistent, open, straightforward, and transparent system ensuring a fast and fair application process.

  16.  Other key changes to the work permit arrangements include:

    —  work permits will be issued in line with the length of a player's contract;

    —  salary information is no longer used as one of the indicators of a player's standing;

    —  review panels (to include representatives from the football governing bodies and up to three independent experts) have been introduced to consider appeals and applications from clubs which do not meet all the criteria but where evidence is provided to support their view that the player concerned is of the highest calibre; and

    —  consultation with the football governing bodies on individual applications will no longer take place.

WORK PERMIT RENEWALS

  17.  Where a work permit is granted to a club for a footballer it will be valid for the duration of the player's contract with that club (normally up to a maximum of 3 years).

  18.  If the work permit expires and the club wishes to retain the services of the player they must submit a new application to the OLS. If the work permit criteria are satisfied ie the 75 per cent international appearances and the FIFA ranking placing, at that stage a further permit will be issued again, in the line with the duration of his contract. In such cases, after successfully obtaining a work permit for a further period, a player may wish to enquire of the Home Office whether he can be granted Indefinite Leave to Remain (ILR) in the UK. The Home Office normally consider such cases where an individual has worked in this country for a continuous period of four years or more. If ILR was granted the player would no longer require a work permit.

  19.  A club wishing to sign a player who already has a work permit from another UK club must submit an application to the OLS. If the application is approved a permit would be issued in line with the new contract (normally up to a maximum of three years). Depending on the amount of time spent by the player in the UK with different clubs it may also be possible for him to apply to the Home Office for ILR.

BACKGROUND TO ESTABLISHING WORK PERMIT CRITERIA FOR FOOTBALLERS

  20.  The announcement of new work permit criteria for footballers for the 1999-2000 season followed discussions with the football governing bodies in England and Scotland. Representatives of the respective football associations, professional leagues and players associations have all regularly contributed to the annual consultation exercise. Since 1992 the OLS have called upon the expertise of the bodies to assist them in reviewing existing criteria and drawing up appropriate arrangements prior to the commencement of each new season.

  21.  A longer and wider ranging consultative exercise was undertaken in 1999. In addition to the normal annual meeting of the OLS and the football governing bodies held in May officials from the OLS undertook a consultation exercise in March which involved them meeting representatives from the Football Association, Premier League, Football League, Professional Footballers Association and the Institute of Professional Sport to establish their views on the current work permit arrangements for football and related issues.

  22.  This consultative exercise, also involved meetings between Ministers and the Professional Football Association, Premier League, Football League and Football Association of England.

  23.  Ministers recognised that it was an extremely difficult task to produce work permit arrangements which reconciled two apparently opposing view points in football, ie free access to the best overseas players wanted by British clubs; and concerns expressed by others about the potenetial barrier this could create to the development of home grown talent and the future success of the national teams. Ministers were also concerned that the salary criteria were inappropriate, as they would unnecessarily increase costs to clubs and hence charges to supporters. There were further concerns that the previous arrangements were not open and led to inconsistent decisions which could not be understood by the public at large.

RESTRICTIONS ON OVERSEAS PLAYERS BY THE FOOTBALL GOVERNING BODIES

  24.  The European Court of Justice's (ECJ) Bosman judgement in December 1995 abolished transfer fees for EEA players who had reached the end of their contracts and also outlawed the previously applied limitation that clubs could only play a maximum of three EEA players at any one time.

  25.  It is understood that the Football League in England have now rescinded this rule but the Premier League in England still apply it. The Premier League and Football League in England retained a restriction on non-EEA players (limiting clubs to playing a maximum of three non-EEA players in a game).

  26.  In Scotland a voluntary quota arrangement had been agreed between member clubs to limit the number of work permit players who could compete in the Scottish leagues at any one time. This limit was set at 20 in total across the Leagues with a maximum of two per club (previously three). As far as the Department is aware this arrangement still exists.

  27.  Although not a restriction, it is also worth noting that FIFA (the world governing body of football) annouced on 1 April this year that all non-EEA players within the EEA will at the end of their contracts become, like their EEA counterparts, free agents. They are therefore able to sign for other clubs without a transfer fee being required.

EVIDENCE OF PLAYERS' SKILL LEVELS AND ACHIEVEMENTS

  28.  In order for the OLS to determine whether the work permit criteria for a footballer are satisfied when an application from a club is received, the evidence set out below is considered.

  29.  Establishing whether an individual has played in at least 75 per cent of his country's international matches during the two years preceding the date of the work permit application. Clubs are asked to seek written confirmation of the player's international appearance record from the Football Association and submit this with their application. The criteria define the "competitive" matches which are taken into consideration in determining whether the "75 per cent ruling" is satisfied. For example, "friendly" internationals are not counted but World Cup games and recognised confederation tournament games (ie The Copa America) are taken into account. A player must have played (taken to the field of play) in a minimum of 75 per cent of the games rather than be a non-playing substitute or simply a member of the squad for international matches.

THE FIFA RANKINGS

  30.  This seeks to confirm that it seeks confirmation that over the same two year period the country that the player has been representing has been successfully competing in international matches at a high level on a regular basis. The OLS uses the official FIFA rankings (normally published each month) to determine the average placing for the country in question over the two year period. This information will be available to clubs on the Department's OLS Internet web site from September 1999 (until then clubs are able to approach the OLS for details of rankings). There are currently 202 countries in the FIFA rankings. All those teams who have regularly earned an average placing of 70th or higher are regarded, for work permit consideration, as nations who have players of the highest standard in their team who have contributed consistently to the achievement of that world ranking.

STATISTICAL INFORMATION

  31.  Work Permits for Footballers (1994-99)


Year
(1 June to 31 May)
New
Applications
New Work
Permits Issued

1994-95*
[38]
[32]
1995-96
30
20
1996-97
19
17
1997-98
33
24
1998-99
22
18

*  Figures for 1994-95 include new and renewal applications.

  32.  Year (1 June to 31 May).


Applications
Renewal
Renewal Work
Permits Issued

1994-95
(see above)
(see above)
1995-96
30
30
1996-97
33
32
1997-98
36
33
1998-99
41
38

  33.  Work permits for Footballers (Current Holders)


New applications
(to date for 1999-2000 season)
Work Permits
Issued
Under
Consideration
Not
Approved

16
12
3
1



Renewal applications received (to date for 1999-2000 season)
Work Permits
Issued
44
44

  34.  The DfEE do not hold information on the numbers of players from other EEA countries (see paragraph 2a) who are currently playing for British clubs as these players do not need a work permit. However, statistics provided by the Premier League and Football League in England show that there are 279 players from EEA countries (including those who qualify for an EEA passport), excluding Britain, competing for clubs in those leagues in season 1999-2000.

  35.  The following statistical information assists in relating the number of applications received for footballers to the total number of all work permit applications (covering every occupation/type of work) received by the OLS from or on behalf of UK based employers during the same periods:

  36.  All Work Permit Applications Received by OLS.


Year
(1 June to 31 May)
Total Number of all
Applications Received
Football Applications Received
as % of Grand Total

1994-95
50,667
0.07
1995-96
53,549
0.11
1996-97
58,812
0.09
1997-98
66,511
0.10
1998-99
78,044
0.08

UNSUCCESSFUL WORK PERMIT RENEWAL APPLICATIONS FOR FOOTBALLERS

  37.  Where an application to renew an existing work permit for a player does not meet the criteria the club is informed in writing by the OLS. The club have the right to appeal against the decision.

  38.  The consequences of a refusal to grant the issue of work permit in such circumstances are that the UK club will no longer be able to employ the overseas national as a player after the termination date shown on his last work permit. Should another UK club express an interest in signing the player in question at that stage they would need to submit a new work permit application to the OLS who would make a decision using the same criteria.

  39.  Any application from a club in respect of the player at a later date would be considered against the relevant criteria for footballers at that time.

  40.  In cases where a work permit cannot be issued or renewed in the UK, the player might be expected to consider seeking a move to a club in another country (including his own country of origin).

PREVIOUS WORK PERMIT CRITERIA FOR FOOTBALLERS

  41.  The work permit arrangements that applied to the football season prior to the 1999 review are attached at Annex E.

  42.  Some similarities to the new arrangements for 1999-2000 will be noted including the retention of the 75 per cent international appearance criteria as a key qualitative measure of a player's international standing in the game and also the definition of a competitive international match.

  43.  The level of a player's salary as an indicator in deciding whether an individual meets the required standard has now been removed. Evidence revealed that footballer's salaries varied significantly in many cases and it was not thought appropriate for the Government to stipulate conditions, which might be a contributory factor to wage inflation within the sport, or to impose a requirement which might favour richer clubs.

  44.  Annual post-entry checks have also been dropped for those players whose club sought an extension to the existing work permit after the end of a season. The checks required the player to have competed in at least 75 per cent of his club's first team games during the past season before his permit could be renewed for the following season. The new pre-entry criteria is now deemed robust enough to ensure that only players of the highest quality will obtain a work permit and as such allows the club that has made the commitment to purchase him the opportunity to retain the player, if they so wish, in line with the duration of his contract.

  45.  The requirement for the OLS to consult the football governing bodies on all applications has also been removed. As the new arrangements are clearer, open and more transparent, there are likely to be fewer queries that need answering by the football bodies. The whole decision making process will be speeded up. The football bodies will continue to be consulted about the effectiveness of the arrangements on an annual basis as before. They will also be called upon, as necessary, when clubs wish their case to be heard by the review panel when the criteria are not met.

WORK PERMIT CRITERIA FOR OTHER SPORTS

  46.  As with football all other UK based sports clubs or organisations wishing to engage the services of a professional non-EEA sportsperson who needs a work permit have to complete a WP3 application form.

  47.  In addition, again like football, work permit criteria for each sport are drawn up (and reviewed annually in most cases) in consultation with the relevant governing bodies. The main aim is to ensure that work permits are issued only to people who are internationally established at the top end of their sport and whose employment will make a significant contribution to the development of that particular sport in this country at the highest level. The stage of development of each sport in the UK, and the level it is played at, are factors that are taken into consideration by the Department in agreeing the criteria.

  48.  The following examples of current work permit criteria cover a wide range of those sports from which the OLS receive differing volumes of applications during the course of a year. The sports include those which, like football, are well established in this country and others which are at different levels of development.

  49.  Of all the sports work permit applications received by the OLS during the course of a year those from UK based cricket clubs normally represent the highest percentage (over one quarter of all sports applications dealt with). Around 300 permits have been issued for professional cricketers to play for clubs in the UK in 1999. Annex F provides details of the criteria for overseas cricket players in respect of the 1999 season.

  50.  Both codes of rugby are also well established in sports in this country. Of the two rugby league has been established professionally for much longer and work permits issued for players for the 1999 season numbered around 120. Rugby union turned professional in the UK much more recently and the OLS issued 50 permits for players to compete in the 1998-99 season. The current work permit arrangements for both codes of the sport are attached at Annex G and Annex H. (The Rugby Union criteria for 1999-2000 season has not yet been finalised with the Rugby Union Governing Bodies).

  51.  A sport which has grown in popularity in the UK over the past few years is basketball. The work permit criteria for basketball players attempts to mirror the developing nature and profile of the sport in this country. There were approximately 75 work permits issued to basketball clubs for players in the 1998-99 season. See Annex I for details of the current criteria.

  52.  Another sport which appears to fall into a similar category as far as popularity and development is concerned in the UK in recent years is ice hockey. Once again the criteria are reviewed annually with the governing bodies in an attempt to ensure these reflect the needs of the sport, the clubs, and the players. The OLS issued just over 50 permits to ice hockey clubs for overseas players competing in the 1998-99 season. Annex J provides details of the current work permit criteria for the sport.

  53.  The sport of speedway is well established in the UK but does not appear to be as popular as it was some years ago. Recent work permit criteria meetings with the governing body of speedway have indicated that efforts are being made to seek ways of re-developing the sport in this country and making it more atttractive to prospective new riders. 24 permits were issued for speedway riders competing for British clubs during the 1999 season. See Annex K for the current criteria.

WORK PERMIT ARRANGEMENTS FOR ENTERTAINERS

  54.  The Employment sub-committee have asked a question about how the criteria which apply to footballers and other sports people, compare with the criteria which apply where employees might have unique individual talents, for example, entertainers. The Department's work permit arrangements recognise that in some circumstances an individual (or group) is employed/engaged to perform or do work which only they can do, for example an entertainer performing his/her act or starring in his/her own show.

  55.  In such cases it is still a requirement of the work permit regulations that the applicant must provide evidence that the aritist(s) in question have performed at the highest level overseas and established an international reputation in their profession. Provided all the necessary information is included in the application the OLS are normally able to authorise these kind of applications quickly and a work permit is issued to the employer in respect of an individual or group.

  56.  The period of employment in the UK for many overseas artists is often a short one, either a one-off performance or a contractual engagement lasting for a few weeks at a time. Work permits are generally only issued on a short term basis (normally up to a maximum of 12 months) for entertainers who have maintained an international reputation. It is not intended that permits issued to entertainers should allow individuals to base themselves in the UK for a prolonged period of time in order to develop their career.

  57.  Where the OLS are able to accept the individual or group as engaging in work which only they can do, there is no requirement for officials to check the availability of suitably qualified "resident workers", ie a person who is an EEA national or has settled status under the Immigration Act 1971 to carry our the work described in the application.

Department for Education and Employment

September 1999


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