A sudden problem has arised...

[Surfer Girl]

So here I am applying to several different companies, prepared to be being offered a cadet ship with some of my choices after a few successful interviews, when one of the companies emails me back enquiring about something that did not occur to me... This is that I have lived in Denmark from 2010-2013 doing a college equivalent degree which specializes in maritime. (I did this originally so I could improve my chances by having experience). Recently I have moved back in with my mum who lives in England while I am securing a place for next years September intake. Before my 3 years in Denmark I lived 10 years in the UK. However, this company stated that there may be complications due to me not having resided in the uk one year prior to my application... I am not sure whether this is the case or not for all companies?

If it is, is there any way around this barrier?

If not, which companies don't take this too seriously and will take me on regardless of this if they are impressed by me interview?

Thanks if anyone knows a solution. I'm very worried having spent the last 5 years of my life planning out this exact future- wasn't expecting this!

[HolyNougat]

What is your nationality?
Did they say why it would be a problem?

[Surfer Girl]

My nationality? I am unsure how nationality is defined but I am a Danish citizen and was born there. However, I have a permanent address in the uk and I have lived there most of my life... :/

And the company mentioned something about "Funding issues as part of government policies".

[Lewis]

You have to be ordinarily resident in the UK ( I think for 3 years) to get smart funding. I don't think nationality maters if your from the EU it's a residency thing.

[GuinnessMan]

You have to be ordinarily resident in the UK ( I think for 3 years) to get smart funding. I don't think nationality maters if your from the EU it's a residency thing.

I believe it's one year because we've had this question not that long back...

[Steve]

I believe it's one year because we've had this question not that long back...

It's not so precise.

MGN 455, Para 8.1b (on page 6) and footnote 5. (Thanks Midge!)

My reading of the OP's situation is that she should not have great difficulty establishing her UK residency because of the preceding 10 years, and in fact if her sole purpose in Denmark was temporary study her "ordinary residence" should always have been UK.

[HolyNougat]

To me it sounds like they have taken a look at the application and have jumped to a conclusion without fully investigating your case.
It seems that you almost certainly are entitled to SMART funding and therefore I would suggest calling them (often works better than an e-mail) and explain your situation in detail.

[Midge]

It's not so precise.

MGN 455, Para 8.1b (on page 6) and footnote 5. (Thanks Midge!)

My reading of the OP's situation is that she should not have great difficulty establishing her UK residency because of the preceding 10 years, and in fact if her sole purpose in Denmark was temporary study her "ordinary residence" should always have been UK.

Ordinary residence is a complicated issue, not defined in UK law, but there is case law Shah is the case Google it, that's the one that's relevant but there are others. Also, the requirements look to me as if they break the freedom of movement of persons, as this requires all in the EU to enable this. C in the requirements if you look at it requires cadets to remain ordinarily resident in the UK following completion of their training!!!
So what interests me is how you are able to do this if you get a job with a company outside of the UK, or if you decide that you want to have a home elsewhere, as then you are not ordinary resident. So much for the freedom of movement of people on that clause. Think ECHR would have fun with all of it to be honest.

Additionally clause C does not state how long but presume its for life?
It needs a rethink.
But its all down to individual circumstances, I would have thought similar to Steve, using education as temporary absence, as there are enough cases to back that up.
If you pm me I can give you some more info

[Surfer Girl]

Thanks everyone for the inputs.

I am very confused at the moment... I actually had an interview not long ago with a company who didn't say a word about the residency and seemed prepared to take me on (waiting for them to get back to me) and now I've had 2 companies reply back with no problem arranging to meet me. But this one company still seems to have a problem with my situation even after I explained my reason for studying abroad and my eagerness to get trained here. If it wasn't because they're my first choice above others, I would forget about it but it bothers me a lot.

[Surfer Girl]

Ordinary residence is a complicated issue, not defined in UK law, but there is case law Shah is the case Google it, that's the one that's relevant but there are others. Also, the requirements look to me as if they break the freedom of movement of persons, as this requires all in the EU to enable this. C in the requirements if you look at it requires cadets to remain ordinarily resident in the UK following completion of their training!!!
So what interests me is how you are able to do this if you get a job with a company outside of the UK, or if you decide that you want to have a home elsewhere, as then you are not ordinary resident. So much for the freedom of movement of people on that clause. Think ECHR would have fun with all of it to be honest.

Additionally clause C does not state how long but presume its for life?
It needs a rethink.
But its all down to individual circumstances, I would have thought similar to Steve, using education as temporary absence, as there are enough cases to back that up.
If you pm me I can give you some more info

Really?? I had never heard this before.


So.. Assuming you have to stay imprisoned in the UK forever like a prisoner, what would happen in theory if you decided to move elsewhere? Would you have to pay back EVERYTHING the shipping company sponsored you with?


Ouch. Don't get me wrong I love England but I see myself moving to some exotic country after at least 5 years of being qualified. Nothing worse than long voyages and then coming back to cold, rainy England... Lol

[alistairuk]

Really?? I had never heard this before.


So.. Assuming you have to stay imprisoned in the UK forever like a prisoner, what would happen in theory if you decided to move elsewhere? Would you have to pay back EVERYTHING the shipping company sponsored you with?


Ouch. Don't get me wrong I love England but I see myself moving to some exotic country after at least 5 years of being qualified. Nothing worse than long voyages and then coming back to cold, rainy England... Lol

Not quite :-) as I'm sure you know, companies as well as tax breaks also receive some funding for each cadet to cover some of the cost of the course. (called Smart funding) it is the eligibility to qualify for the funding that may concern some companies - more so the large training organisations than companies that recruit directly as these training organisations obviously want to make a profit from you or they wouldn't exist!

Not that it helps you but the point being to encourage them to train Brits - hence the residency requirements (as they can't enforce a nationality requirement without EU getting bitchy).

For example - look at Scotland.. Free university is available to Scottish nationals studying in Scotland and any EU national, except English / Welsh, studying in Scotland. So basically (I'm simplifying here) due to EU rules it's fine to discriminate against a part of your own country, but not the rest of the EU nations.

Personally, I wouldn't bother arguing with the company over it, if you've already clarified everything and they still say no - there's no point, they'll just say they failed to accept you for some other reason.

[Midge]

For clarity and as it has come up a few times recently, I have copied below relevant pieces of Smart or things of interest for those looking for sponsorship and current cadets who are training as after reading it I found there are answers to questions people have raised on the forum.

MGN 455 includes eligibilty for the scheme, training arrangements, training st sea, records and audits that need to be kept, Grievance and Disciplinary Procedure (between trainee and TP)



8. Trainee Eligibility

8.1 To be eligible for SMarT funding, a trainee must be:

a. a national of a Member State of the European Economic Area, the Channel Islands
or the Isle of Man; (evidence i.e. a certified copy 4
of the trainee’s passport, National
ID card or Discharge Book where these clearly state nationality, should be kept on
the TP’s file)

b. ordinarily resident 5
in England/Wales/Scotland/Northern Ireland (support under
SMarT will not be paid in respect of overseas nationals who are subject to
employment restrictions and/or a time limit on their stay). This requirement must be
met by all applicants who are qualifying nationals under paragraph 8.1 a, including
nationals of the UK. Evidence of residency 6
e.g. an original or photocopy of any
official letter showing the trainee's UK address, should be retained on the TP's file


c. proficient in spoken and written English and must state an intention to be ordinarily
resident in the UK following completion of their training


Notes
__________________________________________________ _________________________________________________

3
Although Deck has been listed first, trainees may commence Engine training first if appropriate.

4
Copies can be certified by a Consul, Notary Public, Solicitor, MCA Marine Office, Issuing Authority,
Training Provider, College Lecturer or the Master of the vessel. The original documentation should be
copied by the person certifying, who should endorse the copy as “Certified true copy”, state their name,
address and occupation and finally sign and date.

5
This criterion is fact specific. It could be demonstrated by having been ordinarily resident in the UK for
about a year at the time of original application made to the SMarT TP. Other examples may be
considered on a case by case basis. Cases where ordinary residency is established in a shorter period
could include where the trainee either owns a property in the UK or has close family ties to the UK. In
exceptional cases where a particularly strong connection to the UK is established by a non-resident, the
residency requirement may be waived – an example could be a UK national living overseas with parents
serving in the UK armed forces. Documentary evidence will be required for all applicants. The MCA’s
decision on whether the criterion is met or is to be waived in respect of an application is final. In cases
where it is unclear whether the criterion is met or could be waived, TPs should contact the MCA for
advice.

6
Support under SMarT is not intended for those trainees who normally reside outside of the UK and
come to the UK solely for the purposes of training.


__________________________________________________ _______________________


9.Training arrangements

9.1 TPs must provide a financial forecast including the number of training places for trainees
on approved training programmes. The TP is responsible for:

a. ensuring that where a SMarT grant is claimed, the trainee is eligible under the
terms of paragraph 8.1

b. issuing each eligible trainee (where training lasts more than 25 days) with a written
training agreement under the relevant SMarT category. The agreement will
describe the full details of the training programme to be undertaken, the outcome to
be achieved, and the dates and location of training. The TP will agree to provide
vocational education and training from induction to completion of a trainee’s
approved training programme. The agreement will be completed and signed by all
parties concerned at the start of training and a copy must be retained on file by the
TP. Written consent from a parent or guardian to the terms of the agreement must
be obtained in respect of trainees under the age of 18

c. obtaining one of the following (where training lasts less than 25 days):

i. completed MSF 4387 Pro-forma for Training Undertaking from Annex 3, or

ii. a copy of the course completion certificate.

The TP can claim for payment after one of the above has been received which
must be retained on file as evidence that the trainee has attended and successfully
completed the course.

d. nominating for each trainee a Training Officer who is responsible for:

i. monitoring the progress of the trainee throughout the approved training
programme. This includes the completion of their Trainee Record Book (TRB)
through liaison with the Master and Designated Shipboard Training Officer
when the trainee is at sea

ii. maintaining individual records of training for each trainee including
confirmation of attendance and completion of each shore-based and sea
element (where applicable) of training

iii. maintaining continuity and co-ordination throughout the scheme

iv. providing guidance as required and ensuring that all parties involved in the
provision of the approved training programme fulfil their obligations

e. nominating a Liaison Officer, who may be the Training Officer, to co-ordinate and
provide any information in respect of trainees that may be requested by the AB or
MCA under the requirements of the scheme.

f. appointing a Designated Shipboard Training Officer 7
(DSTO) for every period of
shipboard training undertaken by each trainee. The DSTO is responsible for:

i. organising the practical training at sea.

ii. ensuring in a supervisory capacity that the Training Record Book is properly
maintained.

iii. ensuring that appropriate opportunities are made available for the collection of
evidence of vocational competence.

iv. ensuring that all other requirements of the scheme are fulfilled.

v. ensuring that the time the trainee spends aboard ship is put to best use in terms
of training and experience and is consistent with the objectives of the particular
phase of the training programme and the operational constraints of the vessel.

g. The DSTO must be the holder of an MCA accepted CoC. TPs must obtain a
copy of the DSTO’s CoC for audit purposes. Where the vessel is registered to
the UK a copy of the DSTO’s CoC is not required since it is a requirement to
hold either a UK CoC or Certificate of Equivalent Competency (CEC) and, in the
case of CEC holders, the MCA will have already verified the authenticity of the
certificate 8
.

h. The TP should bear in mind, when appointing a DSTO that this officer must
have knowledge of UK Legal and Administrative Processes (UKLAP). This
knowledge should, at least, be equivalent to the UKLAP Grade 2 syllabus which
can be found in Annex 3 of MIN 340.

i. If the DSTO holds a management level UK CEC this will be satisfactory since
they will have completed either a UKLAP exam or an Adaptation Period
Report as per the UK CEC requirements.

ii. If the DSTO holds an operational level UK CEC or an accepted non-UK CoC,
evidence of their UKLAP knowledge will be required at audit (except for Irish
CoCs which are acceptable). Such evidence should consist of one of the
following:

• a company file note confirming the DSTO has completed an in-house
assessment to Grade 2 level and that the officer is found to be competent,
or

• a completed Adaptation Period Report, or

• a UKLAP examination pass certificate issued by the MCA or Scottish
Qualifications Authority (SQA).



Notes
__________________________________________________ __________________________________
7
Formerly for SMarT purposes was referred to as Designated Seagoing Officer (DSO)
8
This applies to UK flagged vessels only. It does not extend to Red Ensign Group or EEA flagged
vessels.
__________________________________________________ ___________________________________

iii. UKLAP reference material and a complete set of MCA M Notices must be
available to the cadets on board ship and these may be stored electronically.
Accepted UKLAP reference material includes Shipmaster Business
Companion 9
(and annual supplements) by Malcolm Maclachan, and Business
and Law Self-Examiner for Deck Officers by Malcolm Maclachan, or
alternatively TPs may download “A Master’s Guide to the UK Flag” available
from the MCA’s website10.

iv. A list of countries whose CoCs are accepted can be found on our website
www.dft.gov.uk/mca under: Home> Working at Sea> Training and
Certification> Certificate of Equivalent Competency.

i. ensuring that sufficient places at sea (where applicable) and ashore are available
for trainees at all relevant times.

j. ensuring that all relevant Health and Safety and employment legislation is complied
with in respect of all trainees for whom support is claimed.

9.2 The TP has the overall responsibility of monitoring each trainee’s progress throughout
their training and ensuring that their Training Record Book is fully completed in a timely
manner and not left until the end of training. If a trainee fails to demonstrate satisfactory
progress towards the training objectives set out in the training agreement the trainee
should have his or her deficiencies brought to their immediate attention by the TP. The
trainee should be given a reasonable period of time to achieve satisfactory progress. If
satisfactory progress is not achieved the TP should notify the trainee and the AB and
cease to claim payment in respect of that trainee.

9.3 During those periods of shipboard training and collection of evidence of vocational
competence it is the responsibility of the Master to provide the link between the DSTO
aboard ship and the Training Officer ashore.

10. Training at Sea

10.1 Each TP, acting alone or in participation with other relevant organisations, is responsible
for the provision and quality of shipboard training of trainees. Under European State Aid
rules, any training at sea can only be supported if it is undertaken in a supernumerary
capacity. The TP must report any period of a trainee’s sea time not completed in a
supernumerary capacity. Funding will be abated accordingly.

10.2 Training undertaken at sea should, where possible, be carried out on UK registered
vessels. In the event this is not possible due to the shortage of suitable berths, training
may be carried out on vessels registered within the European Economic Area 11 or Red
Ensign Group 12. In exceptional circumstances a TP may apply to the MCA by submitting
MSF 4385 in Annex 4 for written permission to use vessels of another flag. In this
instance the MCA must be satisfied that the training environment and Port State Control
(PSC) history is acceptable. Applications must be made before the trainee(s) join a
vessel and not afterwards.

Notes
__________________________________________________ ____________________________________________
9
The Ship Masters Business Companion is currently out of date and should be renewed within the term
of this MGN.

10 A copy of “A Master’s Guide to the UK Flag” can be downloaded from:
http://www.dft.gov.uk/mca/mca_master..._2009_full.pdf 11 European Economic Area: all EU countries plus Norway (excluding NIS), Iceland and Lichtenstein.

12 Red Ensign Group: Bermuda, Cayman Islands, Isle of Man, Gibraltar, Anguilla, British Virgin Islands,
Falkland Islands, Guernsey, Jersey, Montserrat, St Helena, Turks and Caicos Islands.
__________________________________________________ _____________________________________________________________

10.3 Any vessels listed as having excessive rates of PSC deficiencies and/or detentions will
not generally be accepted. Any approval granted will be for a maximum of three years,
after which approval will be reviewed. Any vessels listed as having a variable PSC
history will be considered for a shorter term approval. Where vessels have been rejected
they must show an improvement in PSC if they are to be reconsidered for approval. The
MCA reserves the right to reject or withdraw approval for any vessel of any flag.

10.4 If excessive rates of PSC deficiencies and/or detentions are reported for any UK,
European Economic Area, Red Ensign Group registered or any other approved vessel,
the MCA may withdraw approval for the vessel to be used for training purposes. In which
case, TPs will be contacted by the MCA to arrange for any trainees on board to be
removed. TPs should then complete application form MSF 4385 in Annex 4 for approval.
The MCA reserves the right to reject or withdraw approval for any vessel of any flag.

10.5 Any approval for newly built vessels with no PSC history will be for 12 months and will be
reviewed at the end of that period.

10.6 Any approval that is granted for vessels classed as tankers (oil, chemical and liquefied
gas) will be for three years maximum (as per 10.3) or for one year when the vessel
reaches 10 years of age. In the circumstance that no PSC history can be found for oil
tankers temporary approval may be granted and Oil Companies International Marine
Forum (OCIMF) reports must be supplied to the MCA.

10.7 When vessels are being considered for training trainees under the SMarT scheme the TP
must ensure that:

a. vessels used for training provide an appropriate and safe environment for the
trainees

b. the Designated Shipboard Training Officer (DSTO) is appropriately qualified as per
9.1 g and h

c. the working language of the vessel is English or part English

d. they provide comprehensive written guidance to the Master, Chief Engineer, DSTO
and other officers on the structures of MNTB approved training programmes and
the part they are expected to play in delivery and supervision of on-board training.
This does not apply if the Master, Chief Engineer, other officers and DSTO have
attended a familiarisation course or a briefing at a UK college or with the TP

e. trainees are briefed by the TP before joining the vessel

f. UKLAP Grade 1 reading material is held on board the vessel (see MGN 221)

g. arrangements have been made with the company for an on board induction when
trainees are first appointed to the vessel

h. if female trainees are to be appointed that the vessel provides for female-only
accommodation, separate washing facilities and toilets (where possible), and
provision of sanitary products 13. It is desirable that telephones are installed in
female accommodation.


Notes
__________________________________________________ ___________________________________
13 It is envisaged that vessel operators would keep a stock onboard for emergency use only. Female
trainees would be expected to provide their own sanitary products.
__________________________________________________ ___________________________________

10.8 Every effort must be made to ensure that first trip trainees are not the only trainees of
their own nationality on board. In some circumstances this is not always possible
therefore the DSTO must ensure that extra support is provided whilst the trainee is on
board.


Records and Audits

11.1 Each TP will be required to adhere to the terms and conditions within their signed TP’s
Agreement.

11.2 The SMarT scheme audit process will remain generally unchanged. However, random
spot check audits will be introduced during 2012/13 which will be looking at trainee
weeks claimed from start of training to completion. A TP must at all times maintain clear
(legible), accurate, up to date and easily accessible records in respect of its trainees,
financial and all other obligations under SMarT and their TP Agreement. These records
must be kept for seven years after the completion of training and they may be kept in
electronic format (but must be legible and easily accessible).

11.3 TPs are required to maintain the following records:

a. A copy of each trainee’s written training agreement giving full details of the
approved training programme in respect of which SMarT funding is claimed

b. Accounts relating to the receipt of payments in respect of each trainee from SMarT
and any other source.

11.4 TP records must at all times be available for audit as required by the AB, the Secretary of
State for Transport (SoST), any officer authorised to act on the SoST’s behalf and the
National Audit Office. The TP must ensure that the auditors from these organisations
have unrestricted access to such records as required.

11.5 All records must be:

a. held in duplicate and both copies of records stored in a manner that protects them
against destruction by one single event

b. secured against theft or unauthorised interference

c. in the case of electronic records, stored on a secure system which cannot be
accidentally deleted.

11.6 The TP must ensure that it (or its nominee if appropriate) is available for audit as
required and must participate in those audits according to the auditing body’s instructions
and requirements. Such an audit may include some or all of the following:

a. attendance and participation in the audit by TP staff

b. provision of information and documentary evidence as required by the auditing
body, both during and after the audit as required

c. completion of any required actions noted during the audit

d. closure of the audit, including completion of required actions to the satisfaction of
the auditing body, by the named date.

11.7 TPs that are no longer eligible to claim SMarT funding will be contacted by the AB to
arrange a close-out audit.

11.8 A programme of audits will be agreed in advance with the AB and MCA. This will be
confirmed to TPs prior to the beginning of the audit visits.

11.9 If a TP cancels an audit for any reason they may be liable for any costs that have been
incurred by the AB, e.g. travel and accommodation. A final decision will be made by the
MCA.

11.10 Any retrieval costs incurred for documents requested for audit purposes will be payable
by the TP


12. Grievance and Disciplinary Procedure (between trainee and TP)

12.1 TPs should ensure that in matters relating to grievances or discipline connected with their
training:

a. trainees have access at all times to clear written grievance and disciplinary procedures
and,

b. the provisions of these procedures and the way in which they are carried out are fair
and reasonable.

12.2 TPs should also ensure that the AB is notified of any serious disciplinary action affecting
a trainee’s training agreement resulting in the immediate dismissal or suspension of the
trainee from the scheme.

[Midge]

Not that it helps you but the point being to encourage them to train Brits - hence the residency requirements (as they can't enforce a nationality requirement without EU getting bitchy).

For example - look at Scotland.. Free university is available to Scottish nationals studying in Scotland and any EU national, except English / Welsh, studying in Scotland. So basically (I'm simplifying here) due to EU rules it's fine to discriminate against a part of your own country, but not the rest of the EU nations.

Unless some one has taken up their freedom of movement rights in another EU country, that changes the game somewhat.

Personally, I wouldn't bother arguing with the company over it, if you've already clarified everything and they still say no - there's no point, they'll just say they failed to accept you for some other reason.

Scottish independence if it happens will add to this discussion I wonder how they will tackle that one. A Scottish MCA and smart programme?

Alistair there is the Equality Law too (simply put here its discrimination whereby a person is required to be/to do/ something that others do not have to and creating an unfair advantage or disadvantage without reasonable justification, Equality law I think has to be EU compliant with ECHR ? ) which they have an obligation to stick to, however you are right I think, its easier just to find another reason for companies to say no.
Unless someone has the money to get it looked at through the courts it is unlikely to change, plus it would more than likely takes years and years!

[Old Podgy]

Scottish independence

Scotland will never be independent. This problem will never have arisen.

[thebrookster]

Slide around it, you say your mother is resident in England, and you studied in Denmark. Therefore you are still resident in England, as that would be where your permanent address would be, exactly the same as if you were studying at a UK college/university. So Denmark would be your term time address, and England your permanent address.My younger sister had a similar issue recently, as she has just moved to Austria for a year in Uni there as part of her course. She contacted SAAS (scottish uni funding people) and they gave the above advice.Hope this helps,Phil