Visas and esports

eSports have generally suffered from a lack of recognition in society as a whole and this is particularly true when it comes to government policy – with executive bodies often viewing esports as a wasteful pastime of the youth rather than a dexterous, mentally and physically challenging athletic contest.

Immigration is a perfect example of policy implementation lagging behind societal changes. Some countries are making steps to rectify this situation, with the USA implementing a visa for professional esports players and Germany set to follow suit in the near future.

In the context of a strong majority conservative government it is now clear that the UK will be leaving the European Union in January 2020 and will be implementing a brand new immigration system a year later. Will such radical changes in our immigration process follow the example set by USA and Germany in finally acknowledging esports, or does the future look to bring more of the same?

Current system

The UK’s immigration system is complicated and full of various requirements and restrictions. There is currently a specific visa route for “sportspersons” under the Immigration Rules. The Home Office have amended the definition of sportsperson three times in the last twelve months – giving it an extremely broad application. For the most part, any migrant who wishes to compete as a sportsperson (even at an amateur level) must have the specific visa to do so and may be prohibited from sporting activity if they hold another type of visa.

Additionally, in order to qualify for a sportsperson visa, the applicant must have been endorsed by that sport’s governing body. This is a process which generally requires the sportsperson’s skill to be of an extremely high standard and therefore prevents all but internationally renowned athletes from meeting the eligibility criteria. For example, in football if a club is looking to bring in a non-EU player to England, it must obtain a Governing Body Endorsement from The FA. In essence, the responsibility for assessing an individual’s sporting talent is delegated to the governing body who must endorse an applicant in order for them to meet the eligibility criteria of the sportsperson visa. The result is that many people are unable to compete as they do not have a sportsperson visa and are not eligible to obtain one.

Despite the wide application of the term “sportsperson” within the Rules – esports players are still not recognised within the definition. The main reason for this is that esports does not have a governing body and so the current system is incapable of including them. This means there is no visa route for esports and therefore no way for overseas players to be based in the UK.

In practice, the current system prevents UK-based teams from attracting overseas talent. This is extremely frustrating, given that the policy behind the sportsperson visa is to encourage internationally renowned athletes to apply their trade in the UK. The more talent we have competing here, the more the entire sport benefits. From an immigration perspective, the lack of visa availability for esports players is stifling; resulting in a vicious circle whereby the current Immigration Rules do not allow esports teams to attract overseas talent and so those overseas players are unable to demonstrate to the Home Office the benefit they can bring to UK esports.

The situation is less complex for players who are based elsewhere in the world and travelling to the UK to compete. Interestingly, an esports player is classed as an “entertainer” for the purposes of the visitor rules and so can legitimately enter the UK as a visitor (obtaining a visa to do so if their nationality requires it) and take part in a competition. Payment can also be received as part of this visit – provided the player has been formally invited to the UK by a “creative … organisation, agent or broadcaster based in the UK”.

Players of teams based overseas should therefore find it relatively easy to compete in the UK. In a way, this compounds the issue for UK-based teams; as overseas players can choose to sign for teams based elsewhere, safe in the knowledge that entering the UK for any specific competition will be fairly straightforward.

The future

The government – in the context of Brexit – published a White Paper in December 2018 outlining their broad plans for a new immigration system. Since then much has been said regarding this system and how it is likely to be modelled on the Australian ‘points-based’ style. The reality is that we do not yet have sufficient information regarding how the system will work. It is due to be implemented from January 2021 so we can expect detailed information over the next twelve months. However, it is unlikely that this new system will change the way in which esports players will be dealt with. It is particularly telling that the White Paper mentions “routes for sportspeople” being implemented under the new system but makes no reference to changing the definition of “sportspeople”.

Unfortunately, the current reliance on governing bodies seems incompatible with the way in which the esports industry operates. The Home Office require a governing body (and will in fact only recognise one such body per sport) to police the level of talent required for endorsement. Though there are esports organisations active in the UK (such as the government-authorised British Esports Association), esports in the UK does not have a governing body and will be unlikely to do so anytime soon.

Publishers own the IP for each game and can retain complete control over their product by running competitions themselves. Regulation would require publishers to relinquish control of their IP or (at the very least) co-operate with a third party. Certain publishers may be willing to do so, but those who are notoriously protective of their IP and widely regarded as difficult to work with are unlikely to change their tune just to comply with the Home Office – there is really no benefit to them for doing so and the only definite outcome from the publisher’s point of view would be the loss of autonomy.

One possible solution could be to make the publisher a governing body for their individual esport. This is unlikely to be workable though, as additional responsibilities expected of governing bodies (such as consultation with and reporting to the Home Office) will not be a particularly attractive prospect for publishers. Additionally, this solution would require the Home Office to recognise each individual esport separately. Given that they are yet to recognise esports in general, it seems inconceivable that they would be subtle enough to view CS:GO as one sport and Hearthstone as another.

A more sensible and likely option would be for the Immigration Rules to specifically include an esports visa category. If this were separate from the generic “sportsperson” visa, it could be implemented in a manner which is fit for purpose and could be representative of the industry itself. Instead of holding esports to the standard of the sportsperson visa (which is entirely designed around analogue athletic activities), the Home Office should recognise that esports is a digital athletic activity – separate from (and no less deserving than) ‘traditional’ sports.

The reality is that esports – and the gaming industry as a whole – will continue to grow and will necessitate recognition from government departments sooner rather than later. We can only hope that the new immigration system is representative of such recognition.

If you have any questions regarding immigration and/or esports or wish to discuss anything in this article, please contact Mark Benton.

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