Chapter 3: The frontier with Spain
An historic ‘pressure point’
45.Despite the long-standing sovereignty dispute, the border between Gibraltar and Spain remained relatively open until the Franco era. During this period, Spain increasingly obstructed communications and movement between Gibraltar and Spain, ultimately shutting the border altogether.48 The frontier remained closed until the early 1980s, when the newly democratic Spain began negotiations to join the European Community.
46.The correlation between the UK and Spain’s common membership of the European Community, now the EU, and the improved relations between them, is discussed further in Chapter 4. Here we note only that, in the words of the Chief Minister: “Many in Gibraltar see Spain‘s accession to the European Economic Community in 1986 as the thing that bust open the frontier gates that General Franco had closed in 1969.”49
47.Marlene Hassan Nahon, an independent Member of the Gibraltar Parliament, described the border closure as a “lengthy siege”, which had had a lasting impact on the “Gibraltarian psyche”. Ms Hassan Nahon noted that the frontier remained a “pressure point”, with fluidity of access dependent on political relations between Gibraltar and Spain at any given time.50 Professor Fletcher agreed, comparing Spain’s willingness to cause disruption at the frontier to “a tap … something that comes and goes”.51
48.The Government of Gibraltar cited a visit to Gibraltar in 2012 by the Earl and Countess of Wessex, and Gibraltar’s artificial reef project in 2013, as recent events that had caused politically motivated border disruption. During this period, increased border controls by Spain caused large queues of vehicles and pedestrians, who faced delays of three to seven hours in crossing the frontier. This resulted in an estimated loss of £37.5 million to Gibraltar’s economy.52
Implications of Brexit for the border
49.The Chief Minister noted that Gibraltar already had a relatively ‘hard’ border with Spain, since it was outside the customs union and Schengen Area, with the result that checks were required on goods and people crossing to and from Spain. Mr Picardo said that it would be possible for the border to function effectively after Brexit, but emphasised that this would depend on “good will and good faith” between Gibraltar and Spain, and on whether Spain felt less inclined to demonstrate such good will when Gibraltar was no longer a fellow EU member.53
50.Mr Vasquez agreed that the checks already in place should be sufficient to monitor the movement of people and goods, and to ensure appropriate VAT is paid, when the frontier became an external EU border. Consequently, he argued, Spain should have no cause to intensify border controls following Brexit, and any change would represent simply an “aggressive act” against the UK and Gibraltar.54 Professor Fletcher, by contrast, noted that Brexit had already been the cause of disruption at the frontier—immediately after the referendum, Spain refused to accept Gibraltarian ID cards for a time, causing long delays.55
51.The Chief Minister told us of a border inspection visit by the Commission, during the period of intense disruption in 2012–2013, describing it as an example of how Gibraltar has looked to the EU to arbitrate in disputes with Spain. Though the Commission did not find Spain in breach of EU law, it wrote both to the UK (representing Gibraltar) and Spain with recommendations to help streamline border crossings. Mr Picardo suggested that this, and subsequent inspection visits in 2014 and 2015, had helped to exert ‘soft’ pressure on Spain to keep border delays to a minimum.56
52.This view was supported by Susie Alegre, who warned: “Outside the EU, the possibility of enforcement measures against Spain for [excessive border controls] will be lost.”57
The impact of border restrictions
53.As mentioned in Chapter 2, 40% of jobs in Gibraltar are held by ‘frontier workers’, who commute from Spain to work in the territory. The Chief Minister highlighted the contrast with the UK, where jobs and immigration were prominent themes in the referendum campaign. He noted that there was simply not enough space or housing stock for people to come and settle in Gibraltar itself, which has a total area of just 2.6 square miles, so many live in Spain but cross the border for work.58
54.The Government of Gibraltar noted that any restrictions to frontier workers’ ability to work in Gibraltar after Brexit would not only jeopardise Gibraltar’s general economy, by depriving it of a large part of its work-force, but would also deprive the Government of an important source of revenue in income tax receipts.59 Dr Grocott highlighted Gibraltar’s social welfare infrastructure as being particularly dependent on frontier workers.60
55.Mr Picardo also stressed the human cost of frontier restrictions, which could get in the way of people being able to see friends and family. He described a “cross pollination” effect, where people both in Spain and Gibraltar access services such as banking, healthcare, shops and schools either side of the border.61 Government of Gibraltar figures show that access to Spanish health care is particularly important for Gibraltarians, with over 50% of tertiary referrals to Spanish health providers. Peter-Ashley Mackay-Jackson, a Gibraltar resident, was concerned about future access to health services in Spain if the UK did not negotiate continued access to the European Health Insurance Card (EHIC) system.62
56.The Government of Gibraltar highlighted the importance of the frontier as the route of most of Gibraltar’s goods imports, including virtually all food and fuel supplies. The border is also essential to waste management in Gibraltar, with all the territory’s waste streams presently transported to Spain for processing.63
Cross-border cooperation
57.Witnesses emphasised the importance of cross-border cooperation between Spanish and Gibraltarian officials. Despite friction caused by the sovereignty dispute, which can manifest in occasional confrontations between law enforcement agencies on land and at sea, the Chief Minister told us: “In most instances there is good co-operation at a law enforcement agency to law enforcement agency level.”64
58.Professor Andrew Canessa, a social anthropologist based at the University of Essex, supported this, noting that his research indicated there was considerable official and unofficial cooperation between Gibraltarian and Spanish police and customs officials to combat drug smuggling and people trafficking across the frontier.65
59.Nevertheless, the Chief Minister also emphasised the importance of the EU in facilitating cross-border cooperation by removing the sovereignty dispute from the equation. In particular, Mr Picardo told us that the European Arrest Warrant (EAW), which provides for mutual recognition of arrest warrants issued by participating EU Member States, had been “a blessed relief because it took the sovereignty dispute out of the equation”. Before the introduction of the EAW, “if somebody were to commit a crime in Gibraltar, their bolthole would naturally be to run to Spain through the frontier before they could be apprehended. Ditto, if someone committed a crime in southern Spain, they might wish to try to run to Gibraltar”. Continuing participation in the EAW would be “in the interests of everyone”.66
60.We note that, during our recent inquiry into Brexit: UK-Irish relations, similar concerns over loss of access to the EAW were expressed in respect of the Irish land border, which, like the Spain-Gibraltar border, will become an EU external border post-Brexit. The Police Service of Northern Ireland regarded the EAW as vital in preventing suspects from simply fleeing across the border to evade arrest.67
The impact for Spain
61.As we noted in Chapter 2, fluid cross-frontier movement is also important for the regional economy of Andalusia and the Campo de Gibraltar, both in terms of frontier workers and also in bringing Gibraltarian visitors’ spending power to the area. Indeed, the Chief Minister argued that Spanish workers travelling daily to and from Gibraltar suffered the most from the disruption during periods of heightened border controls.68
Future border management
62.There is already a relatively ‘hard’ frontier between Gibraltar and Spain, with passport checks and customs controls, and the Gibraltar Government’s key priority is to maintain the fluid movement of people and goods through this frontier, by means of a collaborative approach to border management with Spain.69 Witnesses’ primary concern was that Spain might take advantage of Brexit to create additional disruption at the frontier.
63.Andalusia will also have an interest in lobbying the Spanish Government to preserve fluidity at the frontier.70 Commenting on the Cross Frontier Group—a cross-border organisation which brings together representatives from unions, businesses, and public entities from Gibraltar and the neighbouring region of Spain—Dr Grocott said:
“[The] message to take away from the work of that group … is that everybody on both sides of the frontier benefits from a good relationship between Gibraltar and the Campo.”71
64.But though there is a strong common interest in maintaining a good relationship, Dr Fletcher cautioned that politics might trump economics.72 Ashley Fox, MEP for the South West England and Gibraltar region (giving evidence during the Committee’s recent visit to the European Parliament), did not think the Spanish Government would stop frontier workers coming to Gibraltar entirely and risk putting upwards of 10,000 people out of work. However, he also warned that, without the EU to restrain Spanish actions, border disruption might become more frequent. The onus would then be on the UK to take action to try to resolve any issues.73
65.Mr Vasquez suggested that free movement of people over the Gibraltar border might also be affected by recent revisions to the Schengen Border Code, which will require more systematic checks on people travelling in and out of the Schengen zone. He argued that the strict application of these controls by Spain could significantly affect the frontier’s fluidity, unless a specific local accommodation were agreed.74
66.The Chief Minister was confident that an agreement could be reached, and noted that immigration and customs both fell within the competence of the Gibraltar Government. He suggested that existing EU rules on managing local border traffic between third countries and the Schengen zone could provide a possible solution.
67.EU law permits Member States to establish local border traffic management regimes with neighbouring (third) countries outside the EU. These regimes are an exception to the usual Schengen rules on the entry of third-country nationals into the EU, and are intended to ease the restrictions on passage between the EU Member State and the neighbouring country by creating a ‘local border traffic permit’. They are based on a bilateral international agreement between the two countries concerned, which has been approved by the European Commission. The rules are set out in the 2006 Local Border Traffic Regulation, whose main provisions are summarised in Box 1.
Box 1: Regulation EC/1931/2006, the Local Border Traffic Regulation
|
Conditions of entry and stay Local border traffic refers to the regular and frequent crossing for legitimate reasons of the European Union’s (EU) external border by nationals of neighbouring non-EU countries resident in the border areas with the EU. These border residents may cross the external land border of an EU country provided that they are in possession of a permit delivered to facilitate such a crossing (and of a passport, if required in the bilateral agreement), they are not persons in respect of whom the Schengen Information System (SIS) has been alerted and they are not deemed to be a threat to public order. These persons are authorised to stay in the border area for a maximum duration stipulated in the bilateral agreement between an EU country and the neighbouring non-EU country. The stay must not exceed three months. Permits Border residents are given a permit limited to the border area which is valid for between one and five years. The fees will be equivalent to those payable for a short-term multiple-entry visa. However, EU countries may decide to reduce or even waive the fees. Agreements on the implementation of the local border traffic regime EU countries may conclude agreements on local border traffic with neighbouring non-EU countries. They may also maintain existing agreements provided they comply with this regulation. Furthermore, EU countries must ensure that non-EU countries apply the principle of reciprocity and grant comparable treatment to citizens of the EU wishing to travel to their border area. These agreements can allow border residents to use:
EU countries must enforce effective, proportionate and dissuasive penalties in the event of misuse of the local border traffic regime. These may include cancelling or revoking the permit. |
Source: Summary of EU Legislation, Local border traffic at external land borders, 15 June 2014: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:l14506 [accessed 6 February 2017] 75
68.We agree with the Chief Minister that the Local Border Traffic Regulation could be applied to Gibraltar and Spain post-Brexit, as a basis for continuing cross-border movement of labour. We also note that such a regime would apply to passage in both directions between Spain and Gibraltar, not just for passage from Gibraltar to Spain.
69.In contrast to the Chief Minister, Dr Grocott questioned whether a bilateral border deal could be relied on in the long term, given the ongoing sovereignty dispute and strained relations between Gibraltar and Spain. He argued that it would be essential to build in recourse to a third party for dispute resolution in any border agreement, and suggested the EU could be persuaded to play this role to protect the interests of frontier workers (who are largely Spanish and other EU nationals).76
Conclusions
70.It will be in the mutual interest of Gibraltar and Spain to maintain as free-flowing a frontier as possible following Brexit. We urge all parties involved to work together in good faith to reach an agreement that supports ongoing regional cooperation and trade, and avoids undue disruption to the lives of thousands of border residents who cross the frontier daily. We agree with the Chief Minister of Gibraltar that the Local Border Traffic Regulation (EC/1931/2006) could be used as a future basis for movement of labour between Spain and Gibraltar, but note that any agreement will require both sides’ commitment to sustain it.
71.Common membership of the EU has greatly facilitated cross-border cooperation between authorities in Spain and Gibraltar, including in the area of police and judicial cooperation. In particular, we note the importance of the European Arrest Warrant in preventing those wanted for crimes from evading justice by crossing the EU’s external border, in either direction. In a recent report we highlighted the importance of police and judicial cooperation post-Brexit across the Irish land border. It will be equally vital for Gibraltar to continue to cooperate with Spain in this area, and we urge the UK Government, as part of its wider commitment to continuing cooperation on security and policing, to prioritise supporting a new and stable relationship between Gibraltar and Spain.
72.The European institutions, including the Commission, have played an important part in promoting dialogue between Gibraltar and Spain. Following Gibraltar’s withdrawal from the EU, continued cooperation will be just as important, and we urge the UK Government to provide support for this, working both with the Spanish Government and, where possible, with the EU.
62 Written evidence from Peter-Ashley Mackay-Jackson (GLT0003). EHIC (European Health Insurance Card)
67 European Union Committee, Brexit: UK-Irish relations (6th Report, Session 2016–17, HL Paper 76), paras 144–152. See also European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, (HL Paper 77).
75 Appendix 3 provides an analysis of the main provisions of the Regulation.