Gibraltar seeks solution after residents wrongly registered on EES 

The Gibraltar Government is in contact with the European Commission after several Gibraltar residents encountered problems at EU borders despite treaty exemptions from the EU’s new Entry/Exit System [EES] since the agreement entered provisional implementation on July 15. 

The EES requires British and other non-EU nationals entering the 29 countries in the Schengen area to provide biometric information, including fingerprints and a facial scan. 

Gibraltar residents are exempted from EES controls under the treaty arrangements, though they are still required to present a passport, which remains the valid travel document. 

Their Gibraltar identity card or Gibraltar Civilian Registration Card should act as proof of their exemption, but the new arrangements have not yet filtered through to every EU border post given the treaty is still in the early stages of provisional implementation. 

In practice, some Gibraltar residents travelling through EU external borders have been asked to register with the EES despite being exempt under the treaty. 

That can create an additional problem where a resident enters Schengen and is registered on the EES, but later returns to Gibraltar without passing through another EU external border and therefore has no corresponding exit recorded. 

Gibraltar residents can stay in Schengen for 90 days in any 180-day period but, if the EES records their entry without a corresponding exit, the system's Schengen counter continues to run even though they have returned home to the Rock. 

The issue has now been raised by the Gibraltar Government with officials in Brussels. 

“The European Commission has notified external border crossing points of the Schengen area of the new treaty arrangements which apply to Gibraltar cards,” said Deputy Chief Minister Dr Joseph Garcia. 

“It is reported that there are some 1500 such crossing points, at seaports, airports and on land borders.” 

“In such circumstances, it is possible that the message will not yet have trickled down to every single border guard everywhere.” 

“The Government has received a number of reports from residents of Gibraltar who have not been able to exercise their exemption from EES at different entry points into the Schengen area.” 

“In some cases they have been directed to register on the EES, even though they are exempt from it, and in others an entry into the Schengen area has been recorded, without a corresponding exit.” 

“This sets off the 90-day in 180-day counter.” 

“This matter is being raised with the European Commission and a Technical Notice, currently in the pipeline, will provide guidance to Gibraltar residents on how to deal with such situations.” 

The circumstances faced by some Gibraltar residents travelling through Schengen borders are not unique and are similar to issues affecting residents of small European states, including Andorra, which is not a Schengen member but has special immigration arrangements. 

Citizens of Andorra, like Gibraltar residents, are subject to the 90-day limit in any 180-day period but are exempt from EES checks. The same applies to citizens of Monaco, San Marino and the Vatican/Holy See. 

The 90 in 180-day rule remains a legal obligation, but compliance must be established by other means where necessary, for example during an immigration or police check, an application for residence or some other administrative procedure. 

Authorities can rely on travel records and other evidence of where the person has been, rather than a centrally generated EES calculation. 

There is, however, a separate problem for residents of Andorra who are not Andorran citizens and remain subject to the EES, a situation the European Commission has acknowledged. 

They can be recorded entering Schengen through Spain or France, for example, but have no corresponding EES exit when they travel onwards to Andorra. 

The result can be that the system wrongly treats them as overstayers even though they have gone home to Andorra. 

To address this, the EU and Andorra have negotiated a new border-management agreement that the Commission presented on September 7 but which has not yet been adopted by the European Council. 

In essence, the proposed agreement for Andorra is similar to the arrangements in the Gibraltar treaty. 

It would allow residents to avoid EES checks, while Andorra would refer residence applications from third-country nationals to Spain and France for Schengen security checks. 

The wider backdrop to these practical issues is the rollout of the EES this year after years of delays. 

The system has faced technical problems that have caused lengthy queues at EU airports and borders handling large numbers of non-EU travellers, including Britons heading to popular EU holiday destinations. 

Earlier this week, The Sunday Times reported that at least nine Schengen countries had been allowed to delay full implementation of the EES to maintain the flow of passengers at their borders. 

France, Belgium, the Netherlands, Germany, Greece, Malta, Portugal, Italy and Switzerland are understood to have told the European Commission they would not enforce the new controls in full until technical problems with the system were resolved. 

The newspaper reported that Brussels had informally permitted them to do so, with no apparent time limit on the arrangement. 

Spain continues to apply the EES at all its external entry points. 

The system is also in place at Joshua Hassan International Airport, where Schengen checks are conducted after Gibraltar immigration controls under the treaty arrangements.