Thu 12th Jan 2017Visa Update The latest information from the HPA
The HPA has provided Polo Times with the latest information regarding the unfolding situation in the polo community: “Introduction As you may be aware, on 11 October 2016 the Home Office announced, without warning, that the HPA could not grant endorsements of Points Based System (PBS) sponsorships for the 2017 season until further notice. Since then, the HPA has been attempting to resolve the situation through negotiation and discussion. However, by December 2016 the HPA took the view that given the increasing time pressure of the situation and the absence of any satisfactory response from the Home Office, the HPA should instruct its solicitors to advise on alternative ways to reach a solution. Whilst discussions were still ongoing with the Home Office the HPA took the view that it might not advance our ultimate aim if it were to issue a public statement or respond to issues raised on social media. Given the Home Office’s continuing refusal to lift the suspension on the HPA’s ability to grant endorsements and the inevitable impact on polo at all levels in the 2017 season, proceedings were issued yesterday against the Secretary of State. Set out below is a summary of the current position and the HPA will keep you updated with news of any developments. Summary On 11 October 2016 the Secretary of State for the Home Department (SSHD) suspended the HPA’s endorsement criteria, with the effect that no endorsement of PBS sponsorships may be issued by the HPA and no migrants could apply for entry clearance or leave to remain in the UK under PBS sponsorship to participate in the sport of polo. Negotiations have so far been unproductive and despite repeated reminders about the time sensitivity of resolving the issue, the SSHD will not confirm when she will reach a decision. Any application to judicially review the SSHD’s decision must be issued within 3 months of the effective decision being communicated to the HPA. The ‘effective decision’ for these purposes was the email of 11 October suspending the HPA’s power to provide endorsements. The deadline for the issue of proceedings was therefore 10 January 2017. Following advice from Leading Counsel on the merits of the application, proceedings were drafted last week and issued on Tuesday 10 January. Given the time pressure, the HPA’s advisers have requested an urgent hearing on interim relief within 14 days of yesterday’s issue of proceedings. The interim relief requested is that the HPA is free to grant endorsements under the current criteria or in the alternative allowed endorsements under the amended criteria (so far as they can at present be understood). Set out below is some of the background so that you may understand why the HPA decided it had no other option but to issue proceedings. Chronology • In July 2015 Mr Lee Beach, Senior Operational Policy Advisor within the Immigration and Border Policy Directorate, met with the HPA to discuss whether the endorsement criteria for polo remained fit for purpose and relevant. • Following that meeting, Mr Beach highlighted concerns as to the operation of the endorsement criteria and asked that the HPA revert to him by 11 August 2015. • On 10 August 2015 we responded in detail to his concerns. • By email dated 19 August 2015 Mr Beach responded that it should be “business as usual” as far as the HPA was concerned. In light of the concerns that had been raised, the HPA nevertheless thought it proper to continue discussions with the Home Office to ensure that everything was in order for the following season. On 3 December 2015 the HPA contacted Mr Beach indicating that a working group had been set up and suggested that there should be a meeting in March/April 2016 with Mr Beach with a view to finalising the endorsement criteria for the 2017 season. Mr Beach did not respond or take up the invitation. • However, without any warning or prior indication, on 22 September 2016 Mr Beach contacted the HPA to notify it of the need to discuss the endorsement criteria based on the Home Office’s decision to suspend the sponsor licences of a number of sponsors previously endorsed by the HPA. On 7 October 2016 a meeting took place between David Woodd and Oliver Hughes, for the HPA, and Lee Beach and Ragnar Clifford (of the Immigration and Policy Directorate). • By email dated 11 October 2016 Mr Beach wrote to the HPA with detailed and substantial proposed amendments to the endorsement criteria which would in our view have had a detrimental impact on polo at all levels within the United Kingdom. The proposed new criteria were also ambiguous and unclear and needed further discussion and clarification. That email also suspended the HPA’s ability to grant any further endorsements until further notice. • On 11 November 2016 a further meeting took place between the parties. The HPA set out in detail why the proposed criteria in their current form were unworkable for polo in the UK and that even if changes were to be brought in there would have to be a reasonable period to source and train up staff to replace those who would be excluded under the proposed changes. It was agreed that the HPA would make formal representations, including the provision of evidence, to ensure that the proposed new criteria were appropriate. • In the interim the HPA asked that the current endorsement criteria remain in place for the 2017 season because of the impossibility at this late stage of identifying enough sufficiently experienced staff to train and care for the horses. • On 18 November 2016 Mr Clifford responded on behalf of the SSHD, rejecting the request. • The HPA wrote to Mr Clifford again, by email dated 27 November 2016, reiterating the request for the endorsement criteria to be re-instated on an interim basis and setting out in more detail the very significant practical problems arising from their suspension. Further representations were sent to the SSHD on 2 December 2016 and 14 December 2016, addressing both the proposed substantive change to the endorsement criteria, as well as the need for the pre-existing criteria to be applied to the 2017 season. • The SSHD said a decision would be provided by Friday 16 December. Nothing was heard. In a follow up call on Monday 19 December between the HPA’s solicitors (Charles Russell Speechlys “CRS”) and Mr Beach, he said that he could not now confirm when a final decision would be provided. • On 21 December 2016 CRS sent a letter before claim, with time for reply abridged to 30 December 2016. On 22 December 2016 the SSHD acknowledged receipt but indicated that a substantive response would not be available until 4 January 2016. • On 4 January 2016 the SSHD responded substantively, contending that: o There had not been a failure to consult or provide sufficient notice of the proposed changes to the endorsement criteria as the HPA had been aware of the SSHD’s concerns since July 2015; o There was nothing in the Code preventing the SSHD from seeking amendment to the endorsement criteria for an upcoming season; o Since the HPA had not agreed to the SSHD’s proposed changes, and since the previous criteria allegedly failed to comply with the principles of the sportsperson routes, there should be no endorsements under the previous criteria, until a final decision on the new criteria was made; o There had been no commitment to respond to the HPA’s representations by 16 December 2016. The SSHD’s officials were consulting with Ministers and would make a decision ‘as soon as possible’. However, at this time, they were ‘unable to give a specific deadline’. Upon receipt of this letter, a decision was taken to seek the opinion of Counsel as to the merits of a judicial review application. The HPA has instructed Judith Farbey QC and David Lemer. In light of the advice received, the HPA took the decision to issue proceedings and this was effected 10 January with an application requesting a hearing on interim relief in 14 days with the file to be placed before a judge in 48 hours. Next Steps The HPA is hopeful that the Court will accede to its application for interim relief so as to allow the issue of permits under the current criteria for the 2017 season whilst there is proper consultation on the new criteria for 2018. However, the judge may decide to limit endorsements to the proposed new criteria although there remain very substantial internal contradictions and there would be inevitable and very significant damage to the sport in the 2017 season. The proposed new criteria are less than clear, have not been thought through by the Home Office and significantly disadvantage EU (and particularly UK) players and patrons. The third option is that the Court rejects the HPA’s application for interim relief and the HPA must then await a final hearing which is unlikely to take place for several months. In that case the 2017 season would inevitably be compromised. The HPA trusts that this sets out in some detail the background to the current position. The HPA has at all times endeavoured to present the case to the Home Office as reasonably as possible with a view to reaching a mutually satisfactory solution without incurring the costs of legal proceedings. The HPA is of course disappointed that despite its best efforts it has been obliged to issue proceedings. Now that step has been taken the HPA considers it entirely proper that the membership be provided with the detail set out within this note.”
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