Rights of EU citizens,Legal Opinion

October 15th, 2003 by JCB
Posted in Features | No Comments »

LEGAL OPINION: The Pilotage (Recognition of Qualifications and Experience) Regulations 2003

Statutory Instrument 2003/1230 establishes a framework for the recognition of European pilots qualifications and experience by UK Competent Harbour Authorities (CHAs), by amendment of the Pilotage Act 1987.

A new schedule (A1) appears in the Pilotage Act which explains the procedure to be adopted by CHAs in determining whether an applicant for appointment as a UK pilot has the relevant qualifications and/or experience.

Qualified Applicants – Applicants’ rights, CHAs discretion

Section 2 applies where a CHA has determined a requirement for its pilots to have some formal qualification (for example a UK Master’s Certificate of Competency). As this is the case in practically all CHAs, section 2 is likely to be the most commonly relied upon provision. Under this section a CHA is required to compare an applicant’s European qualification against the Authority’s UK qualification benchmark.

Section ((2(2)) is uncontroversial and deals with the case where the applicant’s qualifications correspond to or exceed the required level. In these circumstances the CHA is prevented from refusing to authorise the applicant, (or refusing to consider his application) simply on the basis that he does not hold the required formal qualifications. Simply stated, and with the advent of STCW, somewhat obviously, a CHA has to recognise a Class 1 Certificate issued in any European country as being equivalent to the UK version.

The applicant may, however, still be refused authorisation by the relevant CHA if he fails to complete the required training programme, is unsuccessful in the examinations or is otherwise deemed by the CHA not to be suitably qualified to act as a pilot.  Section 2(3) is rather more contentious, providing that where the applicant’s formal qualifications show a level of knowledge and skill substantially below the level required by the authority (say a Class 2 rather than a Class 1), the CHA is required to allow the applicant to undergo an adaptation period or an aptitude test to demonstrate that he has acquired the knowledge and skills which were lacking. The following points are of note:

_ The Schedule uses mandatory not discretionary

language (“shall” not “may”) granting the applicant a right to an adaptation period/test.

_ The Schedule does not specify a minimum or

maximum period for adaptation, and one must assume that it is for the CHA to determine under their statutory powers conferred by Section 3 of the Pilotage Act.

_ This Section’s reference to the applicant’s level of

knowledge and skill being “substantially” below that required by the authority implies that there is no minimum standard of qualification envisaged.

_ The Schedule only appears to require a CHA to

facilitate adaptation or a test. No doubt the CHAs will have noticed there is nothing in the Schedule, which imposes a requirement for them to pay for these facilities.

_ If the CHA fails to deal with an application

promptly (within four months), or do not make provision for an aptitude test or adaptation period, the applicant may appeal to the Secretary of State.

“Adaptation period”

In the context of the Schedule “adaptation period” means a period in which the applicant acts as a pilot under the supervision of an authorised pilot, in much the same way as trainee pilots have previously been trained.

“Aptitude tests”

An “aptitude test” means a test of the applicant’s professional knowledge to act as a pilot. Again, it would appear that the CHA retains the sole discretion as to whether an applicant has been successful in this test.

The individual applicant may elect whether he wishes to submit to a test or undergo an adaptation period.

Recognition of Experience

The Instrument makes provision for the recognition by a CHA of relevant experience in Pilotage gained in an EEA State other than the UK (Schedule A1 s.5). This section only applies where the CHA requires a candidate to demonstrate general commercial or professional knowledge and ability gleaned from having previously worked in Pilotage. It may, therefore, apply additionally to section 2 or, where a CHA does not require formal qualifications of its pilots, as a separate and distinct provision.

Presumably so as not to constrain the CHAs discretion, the section does not state in what capacity the applicant needs to have been working in order to gain the relevant experience, nor indeed does it define the phrase “working in Pilotage”. In practice it is likely that ‘relevant’ will mean just that, but the prospect remains of an applicant who has never worked as a pilot (but has worked in Pilotage) being able to challenge a CHAs decision not to offer authorisation.

What is not covered

A notable deficiency in the Statutory Instrument is that it only applies to nationals of European States other than the United Kingdom, holding non-UK qualifications. It does not apply to holders (European or UK) of UK qualifications that fall below the standard required by the CHA, nor does it apply to UK nationals who hold European qualifications.

Kevin Austin