The Home Office appears to be cracking down on the entry of foreign amateur cricketers and sportspeople. Emails released by the Home Office under a Freedom of Information request suggest that unpaid amateur cricketers who might in future wish to earn a living from their sport or even any under 17 player who has played at state, province, territory or national team level, paid or unpaid, should be barred from entry to play as an amateur in the UK “so as to protect opportunities for resident sportspeople who are seeking to make a current or future liivng in that sport” and “prevent the displacement of settled workers.”

The same approach is said to apply to women players as well as men, despite the lower earnings potential for women cricketers.

Correspondence between Home Office officials and the England and Wales Cricket Board reveal several examples of Home Office officials discouraging cricket clubs and an academy from sponsoring the entry of unpaid young players to develop their skills or play in amateur tournaments.

New guidance issued in June to Home Office officials and Entry Clearance Officers considerably expands the material on sports visitors, adding specific references to the definition of “amateur” and “professional”:

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.

A “Professional Sportsperson”, is someone, whether paid or unpaid, who:

• is providing services as a sportsperson, playing or coaching in any capacity, at a professional or semi-professional level of sport; or
• being a person who currently derives, who has in the past derived or seeks in the future to derive, a living from playing or coaching, is providing services as a sportsperson or coach at any level of sport, unless they are doing so as an “Amateur”.

The new guidance suggests that examples of”professional” sportspeople who would not be allowed entry under the visitor rules would include:

• players who have played for professional or semi-professional clubs at junior levels, which may include under 17s and under 19s teams, whether they were paid or not
• coaches of junior teams of professional or semi-professional clubs, whether they were paid or not
• former professional sportspeople who have formally reverted to amateur status according to the rules of their sport
• players who have played representative sport for their state, country or territory, whether they were paid or not

There is some doubt about whether the guidance is legally correct. It is certainly confused, given that if a person falls under the definition of “amateur” that person is immediately excluded from being a “professional” and being an amateur simply requires pursuing a sport solely for personal enjoyment and not seeking to derive a living from the activity.

Surely all sportspeople pursue their sport for personal enjoyment? And what amounts to a “living”? Generating some money but not enough to live on would not seem to qualify. If we look at the new examples given, surely all of them meet the definition of “amateur” and are therefore not “professionals”?

Where a person is refused a visit visa on the basis that he or she is a professional sportsperson rather than an amateur, the only alternative visa available for entry would be under Tier 2 of the Points Based System. Very few local sports clubs will be able to obtain a sponsorship licence because of the cost and bureaucracy involved, and amateur clubs certainly will not. Further, the criteria for entry as a sportsperson under Tier 2 requires

It is impossible to understand the purpose of this crackdown. What is the harm the Home Office seeks to prevent? If the sportspeople in question

You can compare the latest version of the relevant section of the guidance, version 6.0, to the previous version, version 5.0, below:

I recently drafted an opinion on a case involving a person asserting that they are an amateur sportsperson who plays as an amateur in the UK for an amateur club but who has been paid for play abroad. Is such a person an amateur or a professional? If not an amateur, there is no route for them to enter the UK to play for a club because to meet the Tier 2 Sportsperson rules a sportsperson must play at the highest level internationally and the whole process costs a small fortune.

Cases like these also raise interesting questions about the drafting of Appendix V and whether a visitor may enter the UK to pursue an activity that is not explicitly listed in the “permissive activities” as well as some other listed activity, such as visiting family or friends friends in the UK. Generally the common law approach (and the approach to visit visas historically, under the old rules) is that a person can do whatever he or she likes as long as it is not explicitly prohibited by law. Appendix V seems to have been intended to kill this off but it is not completely clear that the drafting succeeds in achieving this.

Apart from anything, as long as a person seeking to play a sport and not be paid for it also wants to visit friends and family, the latter is a permitted activity and the person therefore fulfils that requirement.