The Chief Minister, Fabian Picardo, referred to the ability for a Gibraltar-only visa to be issued, following a treaty to allow fluidity of movement of persons from Gibraltar to the EU, at the border. In doing so he categorically stated that the Schengen Acquis provides for individual Schengen member states to limit their visas to the geographic area of the issuing member state. He referred to Article 25.That proposition does not seem to be accurate.
He also rejected suggestions that the presence of Frontex in Gibraltar undermined sovereignty, with a wrong comparison with the fact that French Gendarmes conducted passport checks on UK soil. French Gendarmes do not authorise entry into the U.K.. That is different, they do an advance check before entry into France and then Schengen is achieved physically at the moment one crosses onto French territory.
Further he suggested that an agreement with the EU over Gibraltar was possible before the end of the year, but not a treaty. That cannot be so in international relations and law. If there is agreement, there is a treaty. If there is no treaty, there is no agreement. There can be a continuation of informal arrangements based on what the expected treaty will deliver, if signed.
GIBRALTAR ONLY VISAS NEAR IMPOSSIBLE
A review of the Schengen Acquis shows that visas limited to just Gibraltar are not possible, save in very limited circumstances, namely, on humanitarian grounds, on grounds of national interest or because of international obligation” and then only on specific notification to all Schengen countries, additionally under special rules dealing with asylum applications. Logic and logistics support the conclusion that geographically limited visas are not the rule, but very much the special exception.
Once someone is in the Schengen area there are no controls or checks to prevent a person, who has been allowed entry, from crossing into another Schengen country. That is precisely the core objective of the Acquis: a person, once in, is fully free to move within and throughout that multi-national area, no checks or controls exist at any internal borders.
ATTORNEY GENERAL CLARIFICATION
It is perhaps the moment for our EU law expert, H.M. Attorney General, Michael Llamas, to bat.
He should show, with direct reference to relevant provisions, that Mr. Picardo’s evidence yesterday, to the European Scrutiny Committee of the UK House of Commons, on Gibraltar-only visas, was correct and accurate, and not mistaken.
His silence before that Committee, whilst Mr. Picardo gave that evidence, indicates that he agreed with it. If there is any inaccuracy it is Mr. Llamas’ responsibility and obligation to correct it.
One imagines that the Committee will make the necessary inquiries before finalising its report. We should not wait to be corrected then, if there is any mistake.
Additionally, if there is a misunderstanding on such a fundamental point, it goes to the core of what is being negotiated, so perhaps Mr. Llamas could explain how we could have an agreement before the end of the year, but no treaty.
AGREEMENT BUT NOT TREATY?
How can Mr. Picardo be so sure of an agreement before the end of the year, although the wording of a treaty may not be possible. That is a nonsense, if there is agreement there must be a treaty. If there is no agreement, then there is no treaty.
One cannot have it both ways, as if there is no treaty, the attempt to reach an agreed wording can give rise to disagreement. Let us hope that anomaly is not the subject of criticism in any report that the Committee may issue.
The reality is that time will catch up with everyone, and whilst there may be progress, there will not be full agreement before the end of the year. One would hope, however, that the progress will be sufficient for the current informal interim measures, or an updated version of them, to continue for a few months after the end of the year.
An abrupt end to those informal arrangements would be felt widely and be hard on people.
MR. PICARDO’S WORDS
Mr. Picardo said, “What we believe is possible is to have a Gibraltar-only visa so that you can come just to Gibraltar in certain circumstances.”
Could those “certain circumstances” be to accommodate UK Defence personnel? Could that be because, control could be achieved by the relevant military authorities retaining the travel documents of its personnel?
Or would those “certain circumstances” be of wider application, and if so, how would it be controlled, if the intention is to have no immigration checks at the Spanish/Gibraltar border? We wait and see.
He added, “This is not to reinvent the Schengen wheel from outside of Schengen. Schengen already provides … that each of the member states of Schengen can issue visas of limited geographic application, which are just for the member state that grants them.” Does it? Where?
THE FRENCH EXAMPLE
Mr. Picardo rejected the suggestion that the role of Frontex on Gibraltar might undermine British Sovereignty. He did so by comparing it to the role undertaken by the French Gendarmes on UK soil in checking passports of passengers travelling on the Eurotunnel trains.
It is not comparing like with like. The French Gendarme in London is not allowing access into an immigration area, like what Schengen is, it is an advance clearing of entry into France, which is only completed on arrival on French territory and so then Schengen, by a train whose only destination is France.
Mr. Picardo said, “It is to create an administrative permission set out in an international treaty where the United Kingdom permits a thing and is able in future to undo that permission in the exercise of its sovereignty.” The distinction he makes is not valid in that, whilst Frontex is permitted to decide entry into Schengen, and so Gibraltar, it is exercising ‘control’ here.
That it may be an ability that can be revoked, by rejection of the treaty, will depend on the terms of the treaty, but whilst the treaty is valid the ‘control’ is ceded to a third party. One should not forget that any treaty will be between the U.K. and the EU, so only the U.K., not Gibraltar, will have any ability to revoke it, should one exist.
ACCEPTABILITY
It may well be that the arrangements envisaged in a treaty are acceptable ones, but let us not hide the truth of what those arrangements are. We need to and should go into any treaty with open eyes and full understanding, not only supported by propaganda from Mr. Picardo, and his GSLP-Liberal Alliance Government.
We can only know what it is that Mr. Picardo’s Government is agreeing to once it is made public. At that point the choice will have been made for us, despite that he has no electoral mandate to agree. So, Mr. Picardo and his Government must be prepared to shoulder fully the responsibility for any decision to conclude a treaty, and to face any electoral consequences.
Llanito World 