Anti N-reg provisions - EASA FCL and post-brexit UK FCL

Peter wrote:

So you need to visit a UK flying school and get an FE to fill that in. I would have thought that the possession of a UK PPL would be sufficient, but it doesn’t say that.

When I filled in the form last year, I didn’t get an FE to fill that in but instead wrote in the box “N/A as I hold a valid Part-FCL licence issued by Germany” and attached a certified copy of my Part-FCL licence, which was acceptable to the CAA.

This section was already in the form when I filled it in in October 2017.

Peter wrote:

I have just read through both forms. I agree SRG2142 is clearly for non-FAA ICAO cases. But that’s not what SRG2140 says; it says SRG2142 is required. The whole thing is a cockup; the guidance notes for 2140 are a mixup of the two, referring to the NAA in one place and the FAA in another.

I am not sure there is a mixup of the two. SRG2140 pertains to the exemption specifically granted to FAA licence holders. When I spoke to the CAA on SRG2142 before, their position is that they still need the FAA to confirm the validity of your licence and ratings for which the CAA needs to contact the FAA (i.e. the reverse of the validation process when one wants to have a 14CFR 61.75 licence issued by the FAA on the basis of a foreign licence), for which form SRG2142 is used.

Peter wrote:

HOWEVER – just noticed the “previous declarations cease to be valid after 24 months” in ORS4 1301 above. That means the SRG2140+2142 which we did 1 year ago are valid for 1 more year. So no need to act now, if you did those.

That is my read of it as well, i.e. previous and future declarations are valid for 24 months, which concerns the validity of a declaration.

Separately, the exemption framework that permits the use of the declaration is extended to be in place until 8 April 2020 or until a BASA with the US has been concluded or the exemption been revoked.

Therefore my read is that declarations are valid for 24 months as long as the exemption framework is still in place.

On a separate note, I find it very interesting/confusing that the exemption applies only to FAA licence holders residing permanently in the UK.

What happens to someone who wants to fly an N-registered aircraft into the UK but permanently resides in France or Germany? Does this mean that they can fly in the UK without any declaration? Or does this mean they need a Part-FCL licence to do so?

Is this an implicit statement that the application of the Part-FCL requirement to hold a Part-FCL licence to fly third-country aircraft (and any derogration thereof) is based on the place of residence of the pilot rather than the airspace that is overflown (we had that discussion in another thread)? So if Germany decided to apply the derogation (which it did) that derogation applies to all pilots residing in Germany for all of airspace for which Part-FCL applied, including for flying in the UK? And if Spain decided not to (which it did) and one resides in Spain, that pilot cannot fly into the UK (or anywhere else where Part-FCL applies) without a Part-FCL licence. Although there is not enough information to interpret Part-FCL that way (as per previous discussions), it does have a certain clean practical logic to it: If one resides permanently in Spain, one probably flies aircraft in Spain and from and to Spain so that pilot would have gotten his Part-FCL licence whereas someone permanently residing in Germany might not as Germany decided to apply the derogation. The logic breaks down though if a pilot residing in Spain comes to the UK on a commercial airline flight and then wants to fly an N-registered aircraft in the UK…

Peter wrote:

Why mention FAA 1x and NAA 2x below it? The whole form is supposed to be for FAA license holders.

I suspect it is boilerplate text that they copied out of SRG2142:

I think the logic still makes sense otherwise: In order for the CAA to accept a declaration under SRG2140, they need the FAA to verify that the FAA licence and ratings are indeed valid, for which SRG2142 is needed.

wbardorf wrote:

Is this an implicit statement that the application of the Part-FCL requirement to hold a Part-FCL licence to fly third-country aircraft (and any derogration thereof) is based on the place of residence of the pilot rather than the airspace that is overflown (we had that discussion in another thread)? So if Germany decided to apply the derogation (which it did) that derogation applies to all pilots residing in Germany for all of airspace for which Part-FCL applied, including for flying in the UK? And if Spain decided not to (which it did) and one resides in Spain, that pilot cannot fly into the UK (or anywhere else where Part-FCL applies) without a Part-FCL licence. Although there is not enough information to interpret Part-FCL that way (as per previous discussions), it does have a certain clean practical logic to it: If one resides permanently in Spain, one probably flies aircraft in Spain and from and to Spain so that pilot would have gotten his Part-FCL licence whereas someone permanently residing in Germany might not as Germany decided to apply the derogation. The logic breaks down though if a pilot residing in Spain comes to the UK on a commercial airline flight and then wants to fly an N-registered aircraft in the UK…

My analysis is probably flawed as I read the explanatory note (bold formatting added by me) which says:

[…] this exemption enables FAA pilot licence holders permanently residing in the UK and wishing to exercise private licence privileges to continue to operate in UK airspace

What does that mean? That those permanently residing in the UK do not need the exemption or that they cannot obtain the exemption (and does that mean they need a Part-FCL licence) for flights in UK airspace?

wbardorf wrote:

What happens to someone who wants to fly an N-registered aircraft into the UK but permanently resides in France or Germany?

The right of a state to refuse to recognise a certificate of competency may only be applied against nationals of the state. The requirement for pilots to hold a licence granted converted or validated under the Aircrew Regulation may breach provisions of the Chicago Convention. We discussed this here previously. Notwithstanding, enforcement is left largely to the member states and in your example Germany or France have greater jurisdictional hooks.

What does “permanently residing” as used in the UK general exemption mean? It’s an odd choice of words exceeding the language in the Basic Regulation and they do not align with expressions traditionally used in UK immigration law. The British Nationality Act for example uses “permanent residence leave” to mean “indefinite leave to enter or remain” in an EEA context. The idea of a “permanent resident” didn’t exist before the advent of the Free Movement Directive (*) as far as I’m aware. The UK permanent residence card (*) for example requires a qualifying connection to an EEA country or national. It follows that a person who is “permanently residing” need not be a “permanent resident” so the intended distinction is unclear.

The reference in the explanatory note to “UK airspace” is also unhelpful and, if UK intended the restriction, it ought to have been included as a condition. A derogation made in pursuance of article 71(3), previously 14(6), of the Basic Regulation should apply to the beneficial party throughout the member states. This at least was the view expressed by the Directorate General for Mobility and Transport in a Jan 2015 meeting note and in no way limits what interpretation may be made by the Commission or ECJ:

On the other hand, and on the basis of the functioning of the EU internal market, a
Member State cannot refuse an operator, organisation, or person that has been
granted a derogation in one Member State to access the Member State national
airspace or territory. However if the derogation in question establishes specific
conditions that are limited to the airspace/territory of the Member State to which the
derogation is granted, then the other Member States will be entitled to refuse the
access to their airspace/territory to the operator/s to which the derogation is granted.

As a different flexibility provision was relied on in the UK general exemption, article 71(2) formerly 14(4) of the Basic Regulation, the above DG opinion may be spurious.