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Border situation between Spain and Gibraltar after Brexit

Posted on 17 May 2023
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Is Gibraltar joining Schengen after Brexit?

During June 2016 Brexit was one of the words repeated more often publicly as well as written in newspaper articles around the world. This concept refers to the exit of the United Kingdom (UK) from the European Union (EU) which took place the 23rd of the mentioned month, deciding no longer to remain a member state of the European Union, leaving this international organization. Certainly, the United Kingdom’s referendum forced its citizens to choose between a known option, remaining in the EU, and an uncertain future, because the conditions under which the Member State’s exit will materialize in the future will be the result of a negotiation, as it is established in Article 50 of the Treaty on European Union (TEU). This is a temporary clause, as it was added in the final update to the fundamental treaties, which went into effect with the Treaty of Lisbon (approved on December 13, 2007) and has been in force since November 1, 2009 (Torrecuadrada García-Lozano & García Fuente, 2017).

However, the issue of concern in this article is the situation of Gibraltar after Brexit. What happens with ‘the Rock’? This is the term used by Spain when they refer to Gibraltar. In this sense, Gibraltar is not an integral part of the UK; it is a British colony in Spanish territory. One of the issues is that Spain has claimed that this territory ‘should be returned to it and fully upholds the provisions of the United Nations on this issue. In this line, the Spanish Government supports its argument with the terminology of the United Nations which states that ‘Gibraltar is a “non-self-governing territory pending decolonization”. Furthermore, it points out that this decolonization should be carried out through bilateral negotiations between Spain and the UK, negotiations that the UN has been recommending without interruption since 1965 (La Moncloa, n.d.).

In this regard, the regulation of the situation between the UK and Gibraltar is different from that of Spain and the Rock due to the complexity of the situation. This means that Gibraltar’s situation outside the EU will be different from that of the UK. The Withdrawal Agreement’s specific application to Gibraltar is defined by the Protocol on Gibraltar, which is appended to the Withdrawal Agreement. This Protocol includes measures relating to Gibraltar negotiated by Spain for the first time in European Union basic law (La Moncloa, n.d.). Since the Brexit referendum result was announced, the relationship between Gibraltar and Spain has been a complicated topic. Gibraltar became a British dominion in 1713, even though it is physically located south of the Iberian Peninsula and hence has significant ties to Spain (Etias, 2022).

This brief historical explanation is of great relevance to understand how we have arrived at this situation, to the exit of the UK from the EU, as well as to shed light on what is and will be the regime of Gibraltar in the future as no decision has yet been taken. Brexit will have an impact on UK passport holders traveling to Europe, as well as the way Gibraltar people engage with the Spanish territory.

As in any conflict or dispute, there are always different parties involved, each with opposing interests. So, what happens with Gibraltar after Brexit?

At the end of 2020, the UK and Spain agreed to avoid a physical border between Gibraltar and Spain by allowing the Rock to join the Schengen area. In this sense, Spain, the UK and the EU agreed the 31st of December 2020, hours before the UK’s full exit from the bloc, that Gibraltar would remain part of EU agreements, such as the Schengen area, and that Spain would guard the port and airport, pending a lasting solution. The European Commission and Spain delivered a proposal to the United Kingdom that involves maintaining Gibraltar’s land border with Spain open until the end of 2022 and ensuring free movement of people between Spain and the enclave (Euronews, 2023).

The mentioned agreement is not legally binding but paves the way for an international treaty between the EU and the UK. In this respect, formal negotiations between the European bloc and the United Kingdom have been ongoing since 2021, with the aim of establishing a “comprehensive and balanced” agreement, all “without prejudice to the issues of sovereignty and jurisdiction”. The first mandate was rejected by the British, who objected to the idea of Spanish authorities controlling Gibraltar’s borders. Instead, the UK wanted Frontex to be in charge of Schengen border security in the territory (ETIAS, 2022).

Gibraltar is a British Overseas Territory, and when the UK left the EU, so did Gibraltar. It is no longer part of the European Union and there are currently no plans for this to change. However, negotiations are underway that may see Gibraltar join the Schengen area, a border-free zone that includes most EU countries (ETIAS, 2022). What will Gibraltar’s status as a Schengen territory mean?

In case Gibraltar joins the Schengen area, its immigration policy is likely to change as it will be aligned with that of the rest of the free movement zone. This will include an obligation for some visitors to obtain a Schengen visa to travel to Gibraltar. However, from 2024 onwards, foreign visitors from eligible countries may be required to register on the ETIAS visa waiver platform. The deal reached between the United Kingdom and Spain for Gibraltar, it seems very likely that the British colony will enter the Schengen area, allowing passport-free travel, and will be included in the Schengen deal alongside the other 26 member countries. This means that all Schengen citizens will be able to travel to Gibraltar without having to pass through passport controls (ETIAS, 2022).

However, since the UK is not and has never been a member of the Schengen region, British citizens will be subject to passport checks while entering Gibraltar. This deal will be in effect for four years, during which the EU will station Frontex border guards at the Gibraltar land border to ensure compliance with the free movement accord. This is a position which is not shared by Gibraltar’s citizens as they fear the loss of part of their sovereignty (ETIAS, 2022).

There is currently a great deal of expectation surrounding this unique situation as to what Gibraltar’s final status will be. One is the perspective defended at the European level and at the central governments (UK and Spain), which focuses more on macro-politics, another is that of the cities and its citizens bordering Gibraltar (La Linea and Algeciras), and finally, that of the Gibraltarians themselves. Could it be possible a ‘shared prosperity space’ between the two neighbouring territories? Some experts point out that this could be possible by taking the historical model of development from Shenzhen to Hong Kong and vice versa as an example.

References

By The European Institute for International Law and International Relations.

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