La Linea judge takes preliminary steps in complaint over border interim measures

A Spanish magistrate has initiated preliminary steps toward an investigation into a complaint filed by a Spanish police officer seeking judicial clarity on interim border controls for Gibraltarians, which he believes could be in breach of EU law.

The complaint was filed in November by the same officer who, on two occasions in recent weeks, issued orders to tighten checks and stamp the passports of Gibraltar red ID card holders.

In the run-up to Christmas, a magistrate in La Linea accepted the complaint after reviewing it and initiated preliminary steps toward the investigatory phase, Campo newspaper Europa Sur reported on Boxing Day.

Under interim arrangements agreed by Spain, the UK, the European Commission and Gibraltar, Spanish border guards have allowed red ID card holders to enter Spain without undergoing the checks applicable to non-EU nationals, which after Brexit include Gibraltar-resident British passport holders.

That means red ID card holders can cross without a stamp that would trigger the 90-in-180-day limit on stays, as well as potentially requiring them to confirm their reason for travel and other arrangements.

Conversely, Gibraltar immigration officials allow EU nationals to enter Gibraltar with just an ID card, rather than a passport.

The interim arrangements were put in place pending the outcome of ongoing talks for a UK/EU treaty on Gibraltar’s post-Brexit relations with the bloc.

But the situation has caused increasing concern for a senior officer at the border who believes that, in the absence of any written order or legal framework, his officers could be breaking EU law by in effect “turning a blind eye”.

The officer in question has on several occasions sought written clarification from superiors in Madrid but without success, receiving only verbal orders.

Against that backdrop, he ordered his officers to tighten controls on two recent occasions, causing concern here and, in one instance, triggering reciprocal measures by Gibraltarian immigration staff who stopped recognising EU ID cards as valid travel documents.

But according to Europa Sur, the officer again received verbal orders to ease controls on Gibraltar red ID card holders or face disciplinary sanctions.

He described the situation as untenable, the newspaper reported.

Spain’s Ministry of the Interior, which is responsible for border controls, has said the interim immigration measures it applies at the border pending completion of treaty negotiations are above board.

“We confirm that the situation at the border complies with the law, and there are no security issues,” a spokesperson for the ministry said late November.

In the meantime, the matter is now in the hands of the magistrate in La Linea.

The latest developments come days after the European Commission proposed a phased implementation of its new digital border system, with the UK and Gibraltar governments closely monitoring developments and assessing what impact they could have at Gibraltar’s border with Spain against the backdrop of ongoing treaty talks.

The Entry/Exit System (EES) was due to have come into operation in November but the start date was delayed amid concerns about chaos at border and airport immigration controls as some countries were not ready.

Earlier this month, the Commission suggested a “progressive start” to the EES.

“The proposal, once it has been approved and a date for the start of the system has been set by the Commission, will give Member States six months to deploy the EES,” the Commission said in announcing the development.

There is still no clarity on a specific start date, however.

In the absence of a UK/EU treaty for Gibraltar, the new EU controls would mean much tighter checks on non-EU nationals – including people from Gibraltar – when entering the Schengen zone, including at Gibraltar’s land border with Spain.