Schengen changes just days away, but questions remain at the border
New EU rules requiring tighter checks at Schengen borders will come into force on April 7, but there is still little clarity as to how Spain will implement the changes at its frontier with Gibraltar.
The amendment to the Schengen Border Code was first proposed in the wake of terrorist attacks in 2015. After nearly two years of debate, it was finally approved last December, adopted earlier this year and published in the EU’s Official Gazette on March 18, triggering the 20-day countdown to implementation.
The aim of the amended code is to have a closer control on people entering and leaving the Schengen area by checking all travel documents against national and EU databases.
Currently only citizens from non-EU countries are subjected to such stringent checks but once the change kicks in, they will apply to everyone including European citizens.
The UK and Gibraltar are not part of Schengen and officials here do not intend to apply any additional checks or controls, and have no obligation to do so.
Spain, however, is part of the Schengen area. That means Spanish authorities will be legally obliged to conduct checks on all persons walking or driving to and from Gibraltar.
This is the sort of scrutiny that is common when flying into most airports around the world. The check itself, whether it is done manually or by an automated border control gate, should take no more than a few minutes.
But anyone who has flown into a busy airport like Heathrow or Gatwick knows queues build up rapidly at peak times. In a border like the one between Gibraltar and Spain, which is crossed daily in both directions by thousands of commuters and visitors, systematic checks would soon lead to a backlog.
Gibraltar’s border with Spain presents unique circumstances as far as these new rules are concerned. It is a Schengen border but one which, for now at least, has an EU member on either side of it. There are only two other land borders where Spain will have to implement the new measures, one in Ceuta, the other in Melilla, both of them frontiers with Morocco. And while both of those borders are crossed daily by thousands too, there the comparisons with Gibraltar end. Even after Brexit, Gibraltar will still be in Europe.
The nearest comparison to the Gibraltar/Spain frontier is the border between Slovenia and Croatia.
They are both in the EU and while Slovenia is in Schengen, Croatia is a candidate country which has not yet joined. Both countries say they are committed to implementing the new rules but have entered formal reservations focused on issues of resources, costs and potential queues. “In Slovenia’s view, checks carried out systematically on all persons crossing the external borders, including those enjoying the right of free movement under Union Law, without targeted checks as a basic principle for efficient border checks and without taking into consideration justified exemptions, is a disproportionate measure in relation to the pursued objective of the change,” Slovenia said in a statement to the EU Council, a sentiment echoed by Croatia.
The amended Schengen code allows for a degree of flexibility in applying the new checks, particularly at borders where they would have “a disproportionate impact” on frontier flow.
Countries can apply targeted checks after carrying out a risk-based assessment that must first be submitted to the European Border and Coastguard Agency. So far, however, there is no sign that Spain has submitted such a plan for its border with Gibraltar.
Not only that, even under a risk-based regime, people who are not being targeted for checks against the databases must still be subjected to “a rapid straightforward verification” to ensure their documents are valid. At present identity controls at the La Linea border rarely involve more than a cursory glance at travel documents, ensuring fluidity at peak times.
With just days to go before the amended code comes into force, Spanish authorities have yet to offer any public guidance as to what the practical impact of the change will be.
The Ministry for Foreign Affairs in Madrid has made no formal statement and neither has the Ministry of the Interior, which is responsible – via the Policia Nacional – for implementing the new requirements.
Even at the border itself, senior Spanish officials insist they have received no instructions from Madrid on how to proceed.
I spoke to several people involved in some way or other with the administration of the border. None of them were authorised to speak openly about the upcoming changes, but all shared the same view.
“We’ve had no guidance on this so far,” one of them told me, summing up the general mood.
One possibility is that the new measures could be implemented gradually to avoid logjams at peak commuting times, although the officials contacted by the Chronicle – all of whom spoke on condition of anonymity – could not rule out delays altogether.
The Schengen amendment predates the UK’s referendum on EU membership and is unrelated to the discussion about Brexit. But the sensitivities surrounding the future of Gibraltar’s border in the Brexit context means that the way Spain implements the new requirements will be seen by many as a litmus test of things to come.
For now, the message expressed privately by Spanish officials echoes the line set openly by ministers in Madrid, including Foreign Minister Alfonso Dastis, who last weekend promised a constructive approach to Brexit discussions.
Sr Dastis highlighted Gibraltar’s relationship with the Campo de Gibraltar and said Spain had no intention to take “any type of drastic measures, such as closing the fence”.
“We have to apply these [Schengen] measures because we have no other option,” one Spanish border official told me. “It is not our intention to generate delays and queues.”
But there are, invariably, sharply different views on this question.
José Ignacio Landaluce, chairman of the Spanish Senate’s Foreign Affairs Committee, told ITV News recently that the border situation will be one where Spain will “have to take action”.
“The rest of the EU will demand we control the southern border,” he said.
“Even if we go easy, I can assure you things will be a great deal more uncomfortable than they are now.”
Part of the challenge will be practical. Spain has installed automated border control gates at the pedestrian crossing, but the arrangements for checking drivers and passengers in vehicles are not yet clear. Likewise, while the automated gates can read modern British passports, they are unable to read the EU identity cards which are issued by Gibraltar and remain valid travel documents until the UK leaves the EU.
One possible solution is that additional police officers will be deployed at the border to cope with demand. Spain’s Ministry of the Interior has come under pressure from Spanish police unions concerned about the impact of the amendment on officers manning the crossing. The unions have called for additional resources to ensure checks can be done efficiently, so do not be surprised to see new faces checking travel documents in the days to come.
The developments are being closely monitored on this side of the border too, although there is no clear interpretation of what to expect.
Despite occasional spikes including the two-hour vehicle queues last week, officials here say the border has largely been operating smoothly for some time now.
The problem is that past experience has shown circumstances can rapidly deteriorate without notice.
“It’s all a bit grey at the moment but my take is we’re not going to see a drastic change, and if we do, I suspect it will be short-lived,” one senior official in Gibraltar told the Chronicle.
“Having said that though, it’s so political, it’s very difficult to predict.”