UK threatens no-deal scenario for Gibraltar due to plans for Spain-run border controls

It is starting to become a pattern. Desperate to leave the European Union at all costs, the UK government of Prime Minister Boris Johnson signed Brexit agreements that it longer supports, and is now threatening to renege on these deals if they are not renegotiated. This is the approach it has taken with the Northern Ireland Protocol, and on Wednesday it did it again with the preliminary agreement on Gibraltar, the British Overseas Territory in the south of the Iberian peninsula, which was ceded to Great Britain in 1713 under the Treaty of Utrecht.

On December 31, 2020, just hours before Brexit became a reality and the UK definitively left the EU, the British and Spanish governments struck a last-minute deal to avoid Gibraltar from becoming a hard border of the EU. This preliminary agreement must now be enshrined into an international treaty between the EU and the UK, and which is set to be negotiated later this year.

On June 20, the European Commission issued a mandate to start these talks, but the UK government opposes this document and announced on Wednesday that it is considering a no-deal scenario for Gibraltar.

We are well prepared in all eventualities. And that includes if we find ourselves in a no-deal situation

Wendy Morton, UK minister for Europe and Americas at the Foreign, Commonwealth and Development Office

“We are already working, together with the Gibraltar government, on a possible non-negotiated outcome, in the case that we reach the conclusion that this is the path that we must take,” said Wendy Morton, the UK minister for Europe and Americas at the Foreign, Commonwealth and Development Office.

“It’s fair to say that the UK and Gibraltar governments are working really, really closely on this to make sure we have robust plans in place and that we are well prepared in all eventualities. And that includes if we find ourselves in a no-deal situation,” she told the European Scrutiny Committee of the House of Commons.

Lawmakers in the European Scrutiny Committee have the task of overseeing Brexit and assessing how new EU legislation could affect interests in the UK. But during Wednesday’s question-and-answer session, none of them appeared to have a clear idea of the complexity involved with the negotiations over Gibraltar and the delicate stakes at play regarding sovereignty and economic, human and practical issues.

The preliminary agreement signed in December allowed Gibraltar to join the Schengen area, a European free-travel zone that is made up of 26 countries (22 from the EU, plus Norway, Switzerland, Iceland and Liechtenstein). In the deal, the UK and Spain agreed to demolish the physical border fence separating Gibraltar from the neighboring Spanish city of La Línea de la Concepción in Cádiz province, and move the border to Gibraltar’s port and airport.

It was also agreed that during the four-year “implementation period,” these border controls would be headed by the European border agency Frontex, but that Spain would be responsible for making sure the Schengen rules were observed in Gibraltar. That means that the European agents would have to answer to the Spanish authorities regarding who is permitted to enter the area and the policy of conceding visas.

The document, which gives Spain veto rights over the future relationship with Gibraltar during Brexit negotiations and was hailed as a triumph by Spain, was quickly signed by the government of Boris Johnson, who soon afterward called early elections in which his Conservative Party won an overwhelming majority. But times have changed since then. The British prime minister is no longer as popular, and the Gibraltar lobby in the UK Parliament is very powerful.

External border control and surveillance would take place at Gibraltar port, airport and waters carried out by Spain applying the relevant EU rules

European Commission mandate to start negotiation on the EU-UK treaty

The main sticking point is the fact that the mandate from the European Commission only talks about Spanish officers performing border controls at Gibraltar’s entry points, without mentioning the presence of the European agency Frontex, which had been a requirement made by the UK and Gibraltar.

“External border control and surveillance would take place at Gibraltar port, airport and waters carried out by Spain applying the relevant EU rules,” the mandate stated. “Spanish border guards would have all necessary powers to perform border controls and surveillance.”

When the European Commission released the mandate, it was quickly lambasted by the UK government. Then foreign secretary Dominic Raab said it sought to “undermine the UK’s sovereignty,” and that there was “no possibility for this forming the basis for an agreement.” Two days later, Spain’s foreign affairs minister, José Manuel Albares, met with Raab in London to assure him it was only a “starting point” to begin negotiations, and was not a fixed position.

But tensions persist. On Wednesday, Minister Morton repeated Raab’s concerns: “We believe that [the mandate] directly conflicts with the agreed framework [reached in December], it undermines the UK sovereignty over Gibraltar and cannot form the basis for negotiations.”

“It ignores the crucial role of Frontex and proposes that Spanish officers carry out controls; it gives Spain the power to concede visas or asylum, as well as policing authorities in the territory of Gibraltar,” she added.

Questioned by the president of the European Scrutiny Committee, Bill Cash - a eurosceptic with the mannerisms of a character from British television show Downton Abbey - about whether relations over Gibraltar were still conditioned by the 1713 Treaty of Utrecht, Morton replied: “I fear I am somewhat rusty in matters of history.”

English version by Melissa Kitson.