I refer to Sir Joe Bossano’s letter published on the 10th June 2023 under this headline.
It is worth reading the relevant parts of the New Years Eve Framework 2019 [Framework], and the ‘practical details’ laid out in it, in the context of that letter.
They show the extent of the involvement of Spain, on behalf of the EU in the implementation to Gibraltar of the Schengen acquis, despite the ‘assistance’ of Frontex.
The Framework states at paragraph five: “There will be Schengen crossing points at the port and airport and entry and exit through them will only be permitted on completion of both Gibraltar and Schengen checks. Spain as the neighbouring Schengen Member State will be responsible for the implementation of the relevant parts of the Schengen acquis, including Schengen checks.”
The provision engaging Frontex, at paragraph ten, is that: “… Spain in agreement with Gibraltar authorities shall request operational assistance from the European Border and Coastguard Agency for some tasks related to Schengen checks and external border protection*. A joint operation … may be established for a period of four years.” If after four years any party is “… not satisfied with the results … the agreement will be terminated…”.
The paragraph, as indicated by the asterisk, refers to a note that, “Practical details laid out in a separate document”. It seems that the most relevant of those ‘practical details’ in context are:
“1. Checks for access of persons to Gibraltar and the Schengen Area will be shared operationally between the authorities of Gibraltar and Spain, as the neighbouring Schengen Member State, respectively.
The Gibraltar Authorities will first decide on the authorisation or denial of entry through the entry points of Gibraltar. To do this Gibraltar Authorities will use, among other instruments, their own databases.
Spanish authorities, in application of the Schengen acquis will make the decision on the authorisation or refusal of entry into the Schengen Area. To do this, Spain will use, among other instruments, the Schengen Area databases.
The conditions required by Spanish authorities and Gibraltar authorities for authorising admission into Gibraltar and the Schengen Area will be cumulative.
- Spanish and Gibraltar authorities will carry out the checks of persons and their belongings where necessary at the port facilities, as well as other control actions related to cruises and marinas. Similar arrangements will be put in place at the airport. Spanish and Gibraltar officials will share office space at a facility at the airport to be created for this purpose. During the implementation period a joint operation with Frontex may assist in carrying out these tasks as foreseen in paragraph ten.
- Spanish and Gibraltar authorities will perform joint external border surveillance through seamless police and judicial cooperation. To this end Police and Judicial arrangements will be agreed.
- Regarding short-term visas (“Schengen Visa”), the competency criteria established in the Schengen regulations will be applied, so that Spanish Embassies/Consulates will be competent for the issuance of short-term visas for entry into Schengen through Gibraltar when such competency criteria so determines as will be the Embassies/Consulates from other Schengen Member States. For its part, Spain undertakes to inform the Gibraltar authorities of all short-term visa requests issued. It will be necessary to align Gibraltar with the EU visa policy.
- Gibraltar authorities will be responsible for the authorisation of residence permits, which will only be valid for residence in Gibraltar. Gibraltar authorities will take due account of any eventual opposition that may be formulated by Spain. Any long-term visas that may be required by recipients of residence permits will be issued by the Embassies/Consulates of Spain in accordance with the harmonised Schengen model, unless they contravene the Schengen regulations. It could be foreseen that, after issuance, such visas can be sent to the competent United Kingdom Embassy/Consulate for the purpose of delivery to the interested party when appropriate.
- Gibraltar authorities will provide assurances that their general policy of residence permits is aligned with EU and Spanish standards and based on the existence of real links with Gibraltar…”
It will be interesting to see how those already agreed provisions will see the light of day in any Gibexit treaty finally agreed between UK/Gibraltar and the EU/Spain. Especially so in the context of what Sir Joe quotes from the UK/Gibraltar press release of 29th March 2021, namely, “… that the operation of external border controls of the territory of Gibraltar by Spanish Officials will not be acceptable.”
Could it be that means Schengen checks are not considered, by the UK and Spain, to be “external border controls of the territory of Gibraltar”?
Llanito World 