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Brexit: EU to push for Spanish border and asylum rules in Gibraltar; EU-UK counter-terrorism "dialogue" under consideration

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08 October 2021

Official documents on: negotiations on the agreement on Gibraltar (including plans for Spain to undertake border controls, Spain-UK cooperation on asylum and deportations, Spanish control over issuing short-stay visas, and more); EU proposal for a possible "EU-UK CT [counter-terrorism] Dialogue"; EU notifications under the Trade and Cooperation Agreement on police data protection authorities.

Counter-terrorism dialogue

See: Outcome of proceedings of the Working Party on Terrorism (International Aspects, COTER) of 16 September 2021 (Council doc. 12014/21, LIMITE, 30 September 2021, pdf):

"3. EU-UK cooperation: elements of a possible CT dialogue

Following the presentation by the EEAS, delegation had an exchange of views on the substance of a possible EU-UK CT Dialogue. The issue will be further discuss in the UK Working Party."

Gibraltar

COUNCIL DECISION (EU, Euratom) authorising the opening of negotiations for an agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, in respect of Gibraltar (Council doc. 12178/21, LIMITE, 30 September 2021, pdf):

"The Commission is hereby authorised to negotiate an agreement with the United Kingdom of Great Britain and Northern Ireland in respect of the British Overseas Territory of Gibraltar."

The Decision was approved on Tuesday and the Commission is to negotiate in accordance with: Directives for the negotiation of an agreement with the United Kingdom of Great Britain and Northern Ireland in respect of Gibraltar (Council doc. 12178/21 ADD 1, LIMITE, 30 September 2021, pdf)

The Directives include the following (all emphasis added):

"15. The envisaged agreement should aim at removing all current physical barriers between Gibraltar and the Schengen area for the circulation of persons. The agreement should not provide for the participation of Gibraltar in the Schengen acquis...

16. The envisaged agreement should provide that border controls in full compliance with the Schengen acquis are to be carried out by Spain; such border controls should consist of the performance by Spain of border checks on entry and exit at newly established Border Crossing Points at the airport and port of Gibraltar and the performance of border surveillance in the adjacent waters.

17. The envisaged agreement should provide that Spanish border guards have all necessary powers and obligations to carry out the border controls and surveillance, including with respect to refusal of entry, receipt of requests for international protection, arrest of a person and seizure of property and the application and use of IT systems, in line with the applicable Union legislation. In case follow up actions need to be taken, the agreement should provide for an obligation on the UK authorities in respect of Gibraltar to assist and facilitate the transfer of the person or object concerned to the authorities of Spain."

On asylum:

"e) Rules establishing that Spain, in cooperation with the UK, would be responsible for the examination of asylum applications submitted in Gibraltar in line with applicable Union law. Where necessary UK authorities in respect of Gibraltar would have to assist and facilitate the Spanish authorities in exercising their tasks, including with regard to fingerprinting of applicants for international protection and those apprehended while trying to cross the border irregularly for the purpose of the Eurodac system."

On returns:

"f) Rules establishing an obligation for Spain, in cooperation with the UK, to return illegally staying third country nationals from the territory of Gibraltar, including at the border, and to take all necessary measures to enforce such returns in line with applicable Union law. Where necessary, UK authorities in respect of Gibraltar would have to assist and facilitate the Spanish authorities in exercising their tasks."

Visas:

"j) The envisaged agreement should provide that Spain would be exclusively competent for issuing, on the basis of Union law, short-stay visas in respect of Gibraltar.

k) Rules providing that Spain would be sole competent to issue or renew long-stay visas valid for Gibraltar. Such long-stay visas may only be issued or renewed where the relevant conditions under law applicable in the territory of Gibraltar are fulfilled, which is to be determined by the UK authorities in respect of Gibraltar; Spain may refuse to issue or renew a visa on the basis of an alert in the Schengen Information System..."

Policing and security:

"q) Rules obliging the UK in respect of Gibraltar to require PNR data in respect of all incoming flights to Gibraltar airport to be made available to the Spanish authorities in line with the PNR directive [Directive (EU) 2016/681]; to this end, the agreement should provide that for the purpose of the application of the PNR directive Gibraltar would not be considered as a territory of a third country."

And:

"v) A rule requiring the UK in respect of Gibraltar to ensure that persons who would otherwise be refused entry into the Schengen area, inter alia on grounds of being considered a threat to public policy or internal security, are prevented and prohibited from leaving the territory of Gibraltar and entering the Schengen area; in view of this, the agreement would establish a pre-notification or pre-authorisation scheme for Gibraltar residents in order to allow travel into the Schengen area."

Police data protection authorities

The declaration concerns Article 525 of the Trade and Cooperation agreement, concerning police data protection: