gibraltar view of

General context

On the 1st of February of 2020, the UK withdrew from the EU, setting out the arrangements for the withdrawal in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, including a Protocol on the specific arrangements in respect of Gibraltar.

The Withdrawal Agreement entered into force on the 1st of February of 2020 and provided for a transition period during which Union law applied to and in the UK in accordance with that Agreement. This period ended on the 31st of December of 2020. During the transition period, the EU and Euratom, on the one part, and the UK, on the other part, negotiated a Trade and Cooperation Agreement (TCA), which was provisionally applied on the 1st of January of 2021. However, the TCA neither applies to nor has any effects in Gibraltar. 

As it was required a prior agreement of Spain,  both countries -Spain and UK- reached an understanding on a possible framework for an agreement on Gibraltar and on the 31st of December of 2020, Spain invited the Commission to initiate, on the basis of this understanding, the negotiations of such agreement at Union level.

Therefore, The European Commission has adopted a Recommendation for a Council decision authorising the opening of negotiations for an EU-UK agreement on Gibraltar.

The Commission also presented its proposal for negotiating guidelines. On the 6th of September of 2021, the negotiations between the EU and the UK on the Gibraltar Agreement have started. 

We are going to explain the main points of the Recommendation that could affect the people linked to Gibraltar or planning to visit it in the future.

Purpose of the Envisaged Agreement

spain and gibraltar

The aim of the negotiations is to establish a broad and balanced agreement between the EU and the UK in respect of Gibraltar, in view of the particular geographical situation of Gibraltar, taking into account its status under international law, and in view of the specificities of Gibraltar and its special relation with Spain.

The envisaged agreement should aim to attain a balanced economic and social development of Gibraltar and the surrounding area, in particular the territory of the municipalities that make up the Mancomunidad de Municipios del Campo de Gibraltar of Spain.

Content of the Envisaged Agreement on the Circulation of Persons

The agreement should aim at removing all current physical barriers between Gibraltar and the Schengen area for the circulation of persons. The agreement should provide that border controls in full compliance with the Schengen acquis are to be carried out by Spain.

Also, it is important to remark that time spent in Gibraltar will be counted as time spent in the Schengen area for the purpose of the calculation of authorised stay.

The agreement will remove the physical barriers, including any physical infrastructure and related checks and controls for persons, between Gibraltar and the Schengen area.

Special Rules For Residents Of Gibraltar

  1. The agreement should provide that persons who are legally resident in Gibraltar, have visa-free access to the Schengen area for up to 90 days in any 180 day period in line with the relevant provisions of Union law. Their passports will not be stamped on entry into or exit from the Schengen area.
  2. The agreement should provide that, acquiring and maintaining the right to reside in Gibraltar would be conditional on the existence of a real connection with Gibraltar to be established on the basis of actual and regular physical presence over an appropriate period of time and of other objective and verifiable criteria. 
  3. UK nationals other than UK nationals legally resident in Gibraltar at the time of signature of the agreement are to be treated as any other third country nationals for the purposes of entry and stay in Gibraltar.

Visas and residence permits

  1. The agreement should provide that Spain would be exclusively competent for issuing, on the basis of Union law, short-stay visas in respect of Gibraltar.
  2. Rules providing that Spain would be competent to issue or renew residence permits for third country nationals valid for Gibraltar following a request by the UK authorities in respect of Gibraltar for persons fulfilling the relevant conditions under law applicable in the territory of Gibraltar.
  3. Rules requiring residence permits and long-stay visas already issued by Gibraltar to third country nationals legally resident in Gibraltar at the time of the agreement’s entry into force to be replaced by residence permits issued in accordance with the Agreement within 2 years from its entry into force.

Labour and social standards

Gibraltar

The Agreement should ensure that the EU and the UK in respect of Gibraltar uphold their high levels of protection over time, with Union standards as a reference point, in relation to at least the following areas: fundamental rights at work; occupational health and safety standards; fair working conditions and employment standards; information and consultation rights at the company level; and restructuring of undertakings.

Workers’ rights (including social security coordination)

The Agreement should ensure that Union citizens residing legally in Spain and UK nationals residing legally in Gibraltar, with the exception of those acquiring a right of residence after the signature of the envisaged agreement, enjoy in Gibraltar and Spain respectively a right to take up an activity as an employed person and to pursue such activity in accordance with the rules applicable to UK nationals in Gibraltar and EU citizens in Spain.

To give full effect to this right, they also should enjoy all corollary rights EU law grants to mobile workers, including the right to enter and leave Gibraltar and Spain, reside there during their work, acquire a right of permanent residence and be able to avail themselves of safeguards where the UK or Spain seek to restrict their rights in Gibraltar and Spain respectively.

These are the main points of the Recommendation about the circulation of persons but we will have to wait until the Agreement is signed to know every aspect of it.

Sara Velasco

Bilingual Legal Intern

Sara is the newest addition to the Costaluz team. Bilingual and currently finishing her second Master’s degree. Sara specialises in Civil Law, Contract Law and Real Estate Law. She’s currently writing a thesis on the post-Brexit relationship between Spain and the United Kingdom. For more information see Sara Velasco’s author profile.

 

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