Frontex should actually control the new EU external borders at the Rock of Gibraltar. According to an EU paper, however, the Guardia Civil will take over border tasks there for the first time. In addition to maritime surveillance, this concerns queries of the Schengen Information System or the new EU travel register ETIAS and the imposition of entry bans into the British exclave.

Literally at the last minute, the European Commission and the UK have agreed on a post-Brexit deal. The Trade and Cooperation Agreement concluded on 31 December regulates numerous aspects of future coexistence. Among other things, fishing quotas, but also the uncontrolled border crossing between the British Northern Ireland and the EU member Ireland were disputed until the end.

Brexit also has far-reaching effects on Gibraltar. However, the overseas territory, which has belonged to Great Britain for over 300 years, appears in the agreement exactly once: According to the final provisions, its regulations “shall neither apply to Gibraltar nor have any effects in that territory”. The small town at the Rock is therefore also not part of the EU Customs Union and the Schengen area. Spain would thus have had to introduce border controls on goods and people from Gibraltar from 1 January 2021. This is a major problem in the region, as every day around 15,000 people commute from Spain to work at the crossing in the small town of La Linea to the much richer Gibraltar.

Dissent on sovereignty over exclave

Also on the last day of last year, Gibraltar and Britain agreed with Spain that the British exclave could join the Schengen area. The application of the so-called Schengen acquis will allow the border at La Linea to be crossed without checks. However, the arrangement also means that the Gibraltar port and airport become the EU’s external border and must be controlled accordingly. This also affects the coastline, which Gibraltar must now police for the EU.

However, with 33,000 inhabitants, Gibraltar has no capacity of its own for the management of an external border. Therefore, Frontex should be involved in monitoring border controls in Gibraltar. This was announced by Spain’s Foreign Minister Arancha Gonzalez Laya at a press conference in Madrid. It would be the first time that personnel from the EU border agency would carry out such tasks on their own.

More details are to be settled in a final agreement between the EU and the UK, which is to be negotiated within six months. The agreement could eventually have consequences for the “Gibraltar Squadron”, with which the government in London patrols the Gibraltar maritime borders. The unit of two patrol boats belongs to the British navy. There have repeatedly been conflicts of competence with the Spanish navy or the Guardia Civil during operations. Only this summer, the British Ministry of Defence ordered the modernisation of the “Gibraltar Squadron” with two larger ships.

“Cumulative” denial of entry

The Spanish daily “El Pais” has now published a classified document giving details of the agreement in principle. It is a so-called “Non Paper” distributed by the Portuguese Council Presidency. Besides two letters from the governments of Spain and Great Britain, it contains an eight-page proposal for a framework agreement. According to the paper, the Spanish gendarmerie is more closely involved in border management than previously reported.

According to the proposal, Spain is solely responsible for implementing the requirements of the Schengen acquis, which is why the Guardia Civil border force will be stationed at the external borders of Gibraltar. At the airport as well as at the facilities where cruises and yachts dock, the Spanish gendarmes will in future share offices with Gibraltarian officials.

Both authorities will also be “cumulatively” responsible for authorising or refusing border crossings. First, officers from Gibraltar will decide on the basis of their own databases in which persons are listed for refusal of entry. Then the Spanish Guardia Civil queries the Schengen Information System and its own police or border police databases.

Asylum in Gibraltar?

Also visas at Gibraltar’s external EU borders are to be issued by Spanish embassies and consulates. From 2023 onwards, the EU commission wants to introduce an authorisation system to register all arrivals into the EU. These applications will also be processed exclusively by the Spanish ETIAS office if they concern Gibraltar.

An extra regime, however, applies to residence permits that are valid only for Gibraltar. These may only be issued by the authorities there, but Spain has the right to object. The arrangement is presumably aimed at the primarily British nationals who live at the Rock. Gibraltar is supposed to “provide assurances” that the issued visa are accordance with EU and Spanish standards.

Spain, on the other hand, has completely shirked responsibility for asylum claims made in Gibraltar. According to the framework agreement, the “Gibraltar regulations on asylum” apply, the authorities there are also responsible for processing them and must carry out deportations if necessary. Whether the exclave can do this from its own resources, however, is questionable. The EU Commission is to be involved in the voluntary or forced repatriation of asylum seekers and examine whether this is even possible under EU law.

“Dynamic alignment” for data protection

The “non-paper” states that Spanish and Gibraltarian authorities want to “perform joint external border surveillance through seamless police and judicial cooperation”. The involvement of Frontex in a “Joint Operation” with Gibraltar and Spain, as reported by the media, is marked with the word “may” in the agreement in principle. According to it, the EU border agency will only be asked for support “for some tasks”. Such an arrangement would be reviewed in four years and renegotiated if necessary.

The preliminary agreement addresses, besides border management, customs formalities between the EU and Gibraltar. In order to abolish customs controls at the La Linea crossing point, the EU and the UK must agree on an external customs tariff based on EU standards. Gibraltar would also have to apply other measures of the EU Customs Union and operate corresponding information systems.

According to the “Non Paper”, Gibraltar would be subject to the EU Data Protection Regulation and the Law Enforcement Directive for the exchange of data with border and customs authorities from Spain. There may be some temporary legal uncertainty, as Gibraltar’s implementation of EU laws will apply “on a dynamic alignment basis”.

Image: Royal Navy Gibraltar Squadron exceptionally with four boats at sea (Royal Navy).