Following the unanimous vote in Parliament this week in support of the UK–EU Treaty relating to Gibraltar, HM Government of Gibraltar wishes to address a point that has been repeatedly raised by the Leader of the Opposition, Hon Keith Azopardi KC MP, despite it having been explained in detail in Parliament: why the Government did not seek to negotiate full freedom of movement with the European Union.

The answer, which the Chief Minister, Hon Fabian Picardo KC MP, has already explained to the Leader of the Opposition repeatedly, lies in the legal meaning of freedom of movement within EU law. Freedom of movement is not limited to the ability to cross a frontier for work or leisure. It confers a right of establishment: the right of EU citizens to settle, live and work permanently in another jurisdiction.

As Mr Picardo has explained, had Gibraltar negotiated such an arrangement, it would have granted all 480 million citizens of the European Union the right to come to Gibraltar and establish themselves here. That was the position when Gibraltar was within the European Union. It is not the position under this Treaty, and that outcome has been secured deliberately as a matter of GSLP Liberal policy in order to PROTECT GIBRALTAR and Gibraltarians way of life.

The Treaty instead preserves Gibraltar’s control over immigration to prevent people from the EU to come and live in Gibraltar. Mr Azopardi’s position for the GSD would NOT have protected Gibraltar and the Gibraltarians and he is wrong to suggest that we should have taken that position.

HM Government of Gibraltar • 6 Convent Place • Gibraltar GX11 1AA
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As a result of the GSLP Liberal's policy position, individuals from the Schengen area will not be able simply to arrive in Gibraltar and claim a right to live here. Those wishing to reside in Gibraltar will continue to be subject to Gibraltar’s own immigration laws and procedures. While EU and Schengen nationals may enter Gibraltar in accordance with the arrangements set out in the Treaty, including as frontier workers, they will not enjoy an automatic right of establishment.

Responsibility for determining who may live and work in Gibraltar remains with the Government of Gibraltar. Applying Mr Azopardi’s GSD policy, this control and protection would have been lost.

In the course of parliamentary debate, Mr Azopardi also made an erroneous reference to the example of Liechtenstein, which participates in freedom of movement arrangements with the European Union despite its small size. However, what Mr Azopardi did not appear to know, or overlooked, is that Liechtenstein is a sovereign state with its own seat at the United Nations and, as such, is a member of the European Free Trade Association (EFTA), participating in the European Economic Area (EEA).

Gibraltar as a British Overseas Territory of the United Kingdom is not a member of EFTA or the EEA.

There was therefore no legal or political pathway through which Gibraltar could replicate the Liechtenstein model, and we have leveraged this to our advantage by applying a GSLP Liberal policy to retain control on who has the right to become resident in Gibraltar, which Mr Azopardi's position endangers.

Instead, the Treaty establishes a bespoke arrangement designed specifically for Gibraltar.

It provides for what the Government has consistently described as “fluidity” at the frontier rather than the EU concept of "free movement".

Under the terms of the Treaty, Gibraltar residents will not be subject to wet stamping of passports when crossing the border. They will also be exempt from the European Union’s Entry/Exit System (EES) and from the European Travel Information and Authorisation System (ETIAS). In practical terms, this means that Gibraltar residents will be able to cross the frontier without triggering the 90-day limit that applies to other third-country nationals.

This arrangement ensures that Gibraltar residents can continue to move across the frontier with ease for everyday purposes, while maintaining Gibraltar’s ability to control who may settle in the territory.

The Chief Minister, the Hon Fabian Picardo KC MP, said:

“This Treaty does not create freedom of movement. I have explained why we did not want that to Mr Azopardi repeatedly and will do so as many times as I have to. We are protecting Gibraltar by have fluidity instead of free movement. What it delivers is fluidity at the frontier. It ensures that our people can continue to cross the border for work, family life and daily activities without unnecessary friction, while at the same time preserving Gibraltar’s ability to control who has the right to love and work here in keeping with GSLP Liberal policy, which is obviously different to Mr Azopardi’s GSD's policy which would mean we lose control of who in the EU can come to live and work here.

Lichtenstein is the EFTA and the EEA and comparing us to a UN member state in that relation with the EU is, I am sorry to say, nonsensical and not a serious approach to this debate or the negotiation we have had.

Just this, fundamental, policy difference is a good demonstration of why we could not have negotiated the Treaty with the GSD.”

ENDS