Notifying Spain over residency permits offers ‘additional layer of protection’

Treaty provisions under which Spain can object to a residency permit issued by Gibraltar do not apply to Gibraltarians and will, in practice, provide an additional layer of security to check the backgrounds of foreign nationals seeking to live here.

The point was underlined by Chief Minister Fabian Picardo in Parliament on Thursday after some Spanish media reported Spain would have a veto on who could reside on the Rock.

Under the treaty, Gibraltar will be responsible for issuing or renewing residence permits for Gibraltar but before doing so will notify Spain, whose authorities can object if there is “a threat to public policy, internal security, public health or the international relations” of any EU state, including on the basis of an alert in the EU’s Schengen Information System.

The treaty says any objection on grounds of public policy “…shall be proportionate and shall be based exclusively on the personal conduct of the individual concerned, which must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”

Where there is an objection, Gibraltar will not issue the permit and will inform the person, who will have a right to appeal the decision.

The provisions reflect the checks that all Schengen states do on their shared database prior to issuing their own residency permits.

The UK and Gibraltar do not have access to the Schengen database.

“First of all, let’s be clear, this does not apply to Gibraltarians,” Mr Picardo said.

“The issue of ID cards for registered Gibraltarians is a matter exclusively for Gibraltar without any requirement to check against any system.”

“If you are born a Gibraltarian, you are registered as a Gibraltarian by Gibraltar. Full stop.”

“The issue of residence permits for foreign nationals seeking to reside in Gibraltar will also remain, under Gibraltar law, exclusively a matter for the Gibraltar authorities.”

“We will, nonetheless, now agree – under this treaty - to a consultation with the Schengen authorities in respect of foreign nationals seeking to reside in Gibraltar, to ensure there are no issues of public health, public security or public policy which might lead us to want to revoke or not grant such a permit.”

“That consultation which we will carry out is, unsurprisingly, standard between Member States of Schengen who are required to check new applications for residence on the Schengen System.”

“We shall do it through Spain, as the neighbouring Member State.”

“It is, in effect, a consultation with the SIS database and all Schengen States, but done through our neighbour.”

“The right to seek to prevent the grant of a future residence permit or a renewal of an existing one is not a veto.”

“It is subject to the individual’s right of appeal.”

Mr Picardo said the reasons for lodging an objection must be “at the very highest level of concern for the protection of civil society”.

“There is no higher test in EU law than this one...I cannot imagine circumstances in which we would want to grant a residence permit to such an individual,” the Chief Minister said.

“But, if we wanted to, we could, of course, although that would breach the Treaty and it could bring consequences if not resolved via the dispute resolution aspects of it.”

“Far from that approach, I hope we will all, instead, welcome this additional layer of protection for our people as we will be able now to check against two data bases, not one, before granting such permits.”

The legal right to reside in Gibraltar will be proved by holding a valid identity card or a residence permit issued in Gibraltar in line with Gibraltar legislation.

Gibraltar authorities will regularly review potential risks posed by residents who can travel into the Schengen area and provide regular risk assessments at least every three months to Spain, “…including in connection with enforcement and counter-terrorist investigations and operations,” the treaty says.

In cases where a person constitutes “a sufficiently serious threat to public policy or internal security, public health or its international relations”, the individual can be prohibited by Spain from leaving Gibraltar to travel to an EU country, though the decision can be appealed.

Non-EU nationals who need a short stay visa to visit the Schengen zone will also need one to visit Gibraltar, though EU-issued visas will be valid.

“Where the main purpose is to stay in Gibraltar, the Kingdom of Spain, the neighbouring Member State, shall issue the visa,” the agreement says, with Spain to notify Gibraltar prior to issuing.

Gibraltar can object on “sufficiently serious” grounds relating to public policy, internal security or public health”, in which case Spain can issue a visa but it will not be valid for Gibraltar.

In some circumstances where a person intends to visit only Gibraltar, a short-stay visa can be issued by Gibraltar authorities up to a maximum of 15 in a calendar year.

Under the new rules, EU nationals and non-EU nationals who reside legally in the bloc will be allowed to enter Gibraltar for up to 90 days in any 180-day period. The reverse will apply to Gibraltar residents.

In both cases though, and without immigration checks at the border, those limits may be hard to police in practice.

Gibraltar residents will not be stamped when crossing EU external borders and will be exempt from the new automated entry/exit system, as well as from the new ETIAS scheme still to come into force.