Playing for your country is the ultimate honour for most sportspeople. But when 'your country' is not yours in the eyes of the law, then complex legal issues can arise that can threaten your career - both on and off the field. The rugby pitch in particular has played host to a number of such issues. This article looks at two recent case studies in sports immigration and asks what gives you the right to play for your adopted team?
Back in January, Hendre Fourie, who played for England in 2010, was faced with deportation following a career-ending shoulder injury.
Born in Burgersdorp, Eastern Cape, the South African-born rugby star started his career playing in his home country.
He moved to Yorkshire in 2005 to play for the Rotherham Titans, where Andre Bester took him under his wing. Fourie developed rapidly and in 2007 transferred to Leeds Carnegie, and later to the Sale Sharks.
Having made Britain his home, both professionally and personally, Fourie took legal steps to become a recognised English player. 'I've signed the papers to say am I now an English player and not a foreigner in the team,' explained Fourie in 2009.
Fourie became known for his raw power and rucking technique, and for winning an impressive 8 caps for England. But his hopes for a long career with the team were dashed when a persistent shoulder injury forced him to retire from professional rugby.
A 'red tape nightmare'
The 33-year-old flanker, known to his teammates as 'Shrek', has lived in the country for 8 years and his son was born here. He originally came to England on a working holiday visa with a far gentler profession in mind, and pursued his teaching studies on an international graduate visa. His eventual move to Leeds Carnegie earned him a tier one (highly skilled) sportsperson visa.
Following unsuccessful shoulder surgery, England terminated Fourie's contract in January (2013), which would have left him just 60 days to return to South Africa. At this time Fourie would have been 2 years away from gaining permanent residency. He described the entire process as a 'red tape nightmare'.
Fourie had the support of his ex-team mates and sports commentator Brian Moore, who pointed out that he sustained the career-ending injury playing for England, and that his 'outstanding contribution' to English sport should entitle him to remain in the country.
The rugby community rallied behind Fourie with the Twitter campaigns, #SaveShrek and #FourieToStay.
It later emerged that the UK Border Agency were not curtailing Fourie's visa, and they pointed out that there were potentially other routes to British citizenship open to him.
However, by this point Fourie had become disenchanted with the whole system and was committed to returning to South Africa. He said, 'I am not angry, we have a lot of family in South Africa, which will be good for Hendro [his son], but it is just frustrating the way things have worked out.'
Manu Tuilagi, now 21, left Samoa as a child to attend school in England. At John Cleveland College in Leicestershire, he demonstrated his skills on the playing field and quickly moved up the ranks to play for the England Under-18s. He debuted with the Leicester Tigers in the 2010/11 season.
But problems arose for Tuilagi when he was called up to play for the England Under-18s, and was unable to travel abroad with his team. In June 2010 it came out that he had originally entered the country on a six-month holiday visa, and had remained under the radar for six years.
It was a major blow for Tuilagi, who was in line for a professional contract. Despite having lived in England since childhood, the Home Office flatly refused his application to stay in the country.
Friends, fans and teammates rallied behind Manu with letters of support, Facebook groups and petitions, and he also had the backing of Leicestershire MPs and the Rugby Football Union.
Eventually Tuilagi, who said he wanted to play for the country where he grew up, was granted 'indefinite leave to remain' by the UK Border Agency, who said they had 'considered [his] case on its own merits'.
Tuilagi represented England in 2011 and continues to play for the Leicester Tigers.
Immigration: the rules*
The UK Border Agency's Immigration Rules are long and complex, but they boil down to the following:
Tier 2 Sportsperson Migrants
- When a sportsperson migrant is granted a visa, they are entitled to remain in the country until their contract ends, or for up to 3 years, whichever is the shorter.
- They must present a Certificate of Sponsorship from an 'A-rated sponsor' (within 3 months of receiving it), and intend to work for that employer and to live in the UK.
- They must be qualified to do the job in question and have been endorsed by the Governing Body of their sport.
- The player or coach must be 'internationally established at the highest level whose employment will make a significant contribution to the development of his/her sport at the highest level in the UK, and that the post could not be filled by a suitable settled worker'.
*For more information, consult the UK Border Agency Immigration Rules Part 6A, Sections 245H-245HF.
(On a side note, I would like to point out that everywhere in the Immigration Rules the sportsperson is referred to as 'him'. It's high time they revised these outdated pronouns!)
A solicitor's perspective
According to immigration solicitors, just like with Manu Tuilagi, Hendre Fourie's ties to Britain would count in his favour for British residency if he chose to apply for a new visa.
'Having established ties and connections whilst in the UK, Fourie's circumstances have changed to the extent that a new application based on his current circumstances would be crucial and indeed justified in his situation.'
'In the face of the new Family Migration Rules, were Fourie to make an application seeking Leave to Remain based on the fact he has a British child, the UK Border Agency would have great difficulty in justifying a further refusal decision. Fourie stands much better chances in succeeding with such an application.' - Bushra Ali, Thaliwal Bridge Immigration Solicitors.
But the UK Border Agency's repeal was too little too late and it seems likely that England has lost one of its strongest players. 'I wanted to repay this country, he said. 'I wanted to give something back.'
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