Wednesday, 14 December 2016

BREXIT and Border Controls

The answer to the questionwill BREXIT result in a change in border controls at our border, is, it depends.  

The answer depends, initially, on whether there is a “hard BREXIT” or a “soft BREXIT”, in terms of whether or not the UK (with the inclusion of Gibraltar) agrees to freedom of movement, meaning the right (with few exceptions) of EU citizens to live and work in any other EU country (that would include the UK and Gibraltar after BREXIT).  

Agreement to freedom of movement is inextricably linked, currently, to the subject of whether or not the UK (and Gibraltar,for services, as is the present arrangement, assuming that no other specific Treaty provisions impact on Gibraltar’s position) would remain in the EU Single Market.  This membership could beeither through EFTA membership (consisting now of Norway, Iceland and Liechtenstein) or by specific agreement, as is the case with Switzerland.  

The conundrum is that, seemingly, as the debate stand, the UK would wish to remain in the EU Single Market but to opt out of freedom of movement obligations.  This arrangement is not acceptable presently to the remaining EU membersso there is a likelihood that freedom of movement may not continue after BREXIT.

So what different treatment would apply at the border with Spain,on the basis that freedom of movement would cease to exist?  The answer is simple: applying current EU rules, there could be greater checks at our border that could cause delay, absent goodwill from Spain or special agreements.  

The principle that exists currently, as a matter of EU law, whichresults in a smother and faster cross-border flow would cease to apply.  This principle is that minimum checks, simply to establish identity by a rapid and straightforward check of passports or identity cards, are applied to EU citizens who enjoy freedom of movement.  It is this principle that the EU inspectors criticised Spain for not applying at our border when long queues were created by action taken by Spain in recent years.  It was this EU intervention that led to a return to a smooth fast flowing border.

So, absent goodwill from Spain or special agreement for our border, what EU rules would apply?  

A non-EU national, for stays not exceeding 90 days in any 180-day period, needs to possess a passport with a valid visa (if a visa is required, there is much press speculation on the question of a need for a visa that remains unresolved), justify the purpose of the intended stay, show sufficient means of subsistence, not have an alert issued in the Schengen information system that would lead to refusal of entry and not be considered a threat to public policy, internal security, public heath or international relations.  Entry may be refused if any of these conditions are not met, absent special reasons like humanitarian ones. Passports will be systematically stamped on entry and exit. 

If all this criteria is strictly applied at our border, one can see easily (not least from past actual experience) that the required checks will cause delays on crossing; delays that would impact on our economy and that of the Campo area.  One casualty could be those persons, be they Spanish nationals or other nationals, who cross the border daily to work in Gibraltar.  The other casualty would be the ability of British nationals (including Gibraltarians) to live in Spain. 

Regulation EC1931/2006 allows for special passes to be given, in certain circumstances, to cross-border workers travelling from a non-EU country to work in an EU member state.  It does not deal with the reverse situation that would be the applicable one at our border.  Accordingly, if no special overall arrangement is reached to govern our border crossing, a bilateral arrangement would be the available solution to facilitate border crossings by cross-border workers from Spain into Gibraltar. The ability of British nationals to reside in Spain would need, also, to be dealt with by agreement flowing from the negotiations.

Only time and negotiations will clarify these issues that impact on our border and those Gibraltarians who live in Spain but an understanding of the current position is needed to inform any discussion during the BREXIT process. Gibraltar did have different arrangements from the UK at the time of the original accession into the EU, when Spain was not an EU member, which indicates the ability for differences to be agreed that are applicable to Gibraltar and not the UK.  Today, however, Spain is an EU member; the extent that Spain will be involved in issues that engage Gibraltar and the extent of the influence that it will yield on this front is still to be seen. Let us hope that realism and pragmatism will prevail for the benefit of the whole area, importantly the hinterland, which can ill afford an artificial and avoidable economic downturn arising out of purely political motives.

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