Supplementary written evidence by the
Border & Immigration Agency, Home Office
During the evidence session on 17 October, I
promised the Committee an update on Gibraltar's position vis-a"-vis
Frontex.
Gibraltar's interest relates to Article 12 of
the Frontex Regulation. This provision was drafted against the
background of the UK having been prevented from participating
in the adoption and application of the Frontex Regulation, the
point that we are challenging before the European Court of Justice.
As the UK was prevented from participating in the Regulation it
does not apply to us or, therefore, to Gibraltar.
It was nevertheless recognised that the UK (and
Ireland) has expertise in the area of border control and that
provision should be made in the Regulation to allow the Schengen
member States and Frontex to avail themselves of this expertise.
This is addressed by Articles 12(1) and (2) of the Frontex Regulation,
which provides for Frontex to facilitate operational co-operation
between the Schengen States and the UK and Ireland. The mechanism
for this co-operation is set out in Article 20(5) of the Regulation.
Under that Article the UK can make requests to participate in
the Agency's activities. The Regulation provides for such requests
to be dealt with by Frontex's management board, and to be decided
by an absolute majority of its members. In practice, the UK requests
to participate on a case by case basis and Member States have
the opportunity to object if they wish, by written procedure.
We have made a number of such requests without any objections
and participated in a number of the Agency's operations.
Gibraltar cannot submit its own requests to
the Frontex management board—it is for the UK to submit
requests—but we do not consider that there is any legal
bar to Gibraltar personnel participating in Frontex operations
as part of the UK's participation in such operations following
a successful request under Article 20(5).
Article 12(3) of the Frontex Regulation is the
only provision in the Regulation that mentions Gibraltar. This
provision is not concerned with Gibraltar's role in the UK's operational
co-operation under Articles 12(1) and (2). It is concerned with
the remit of Frontex. Article 1(1) of the Regulation provides
that Frontex is established with a view to improving the integrated
management of the external borders of the Member States. Under
Article 1(4) the reference to the external borders of the Member
States is to be construed as a reference to the Schengen external
border. As such it excludes the borders of mainland UK (and Ireland)
but includes the external borders of the Schengen States, including
those of Spain. But for Article 12(3) this would have included
that part of the Spanish external border that runs between Spain
and Gibraltar. As Spain disputes the line of that border, however,
it pushed for the inclusion of Article 12(3) to suspend Frontex's
remit in relation to that part of the Schengen external border
until the dispute is resolved.
Our position is that Article 12(3) does not
exclude Gibraltar personnel from participation in the operational
co-operation provided for under Article 12(1) and (2), where the
UK co-operates with other member States under the auspices of
Frontex to improve the management of the (remaining part of the)
Schengen external border.
We believe Gibraltar has a Treaty right to participate
in this Schengen-building measure, alongside the UK. Therefore,
if our challenge in the ECJ is successful and consequently UK
involvement in Frontex is subject to renegotiation, we will wish
to assert Gibraltar's participation under the Regulation at the
same time. Any decision on this issue would, however, be subject
to QMV.
Finally, whilst the UK is responsible for representing
Gibraltar in the EU, under the Constitution of Gibraltar, the
administration and operation of immigration and border controls
in Gibraltar are the responsibility of the Government of Gibraltar.
Tom Dodd, Director
Border & Visa Policy
10 December 2007
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