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Dual citizenship and Scottish independence

Coming back from my break and looking through various updates, I was struck by a series of articles on citizenship and nationality laws in the event of Scottish independence following the vote this Thursday. Some of these seem to me fundamentally to misunderstand the independence process as it is likely to operate. Citizens of a newly independent Scotland would not generally retain British citizenship: that is the whole point of independence, after all. However, some Scots would qualify for dual citizenship of the new Scotland and the remainder or rest of the UK (‘rUK’).

In an article by Nick Barber appearing on the UK Constitutional Law Association blog and on the Scottish Constitutional Futures Forum it is suggested that Scots would be forced by rUK to make a choice between citizenship of rUK and citizenship of the new Scotland, and that dual citizenship would not be available. This seems to me to be extremely unlikely and to be based on a fundamental misunderstanding.

Passport production line
How a passport is made by ukhomeoffice, on Flickr

Citizenship and independence

Citizens of newly independent countries do not in fact retain citizenship of the country from which they have become independent, with the exception of a small number of potential dual citizens who qualify under the citizenship laws of both countries. Citizens of Australia, Kenya, India and every other country that became independent did not generally retain what was then called Citizenship of the United Kingdom and Commonwealth, for example.

Ireland was a sort of exception as the British unilaterally insisted that, like it or not, the Irish were ‘British subjects’ until the British Nationality Act 1948 came into force. The 1948 Act established a new Citizenship of the United Kingdom and Colonies and defined that citizenship with reference to the 1922 border: those born in Ireland did not automatically become CUKCs. However, a registration process was established to enable Irish residents of the UK to register as CUKCs after one year of residence, a period later extended to five years.

No-one was forced to choose one citizenship or the other. Or, at least, they weren’t forced by the UK. India does not permit dual nationality and so does force people to choose.

Barber’s piece was followed by a highly questionable article by Sarah Craig appearing on the Futures Forum and on the GRAMNet blog entitled What goes with Dual Nationality? Valuing integration and equality. Also referenced by Craig is a very good article by Bernard Ryan on the same subject entitled At the Borders of Sovereignty: Nationality and Immigration Policy in an Independent Scotland, which does not make any of the same mistakes as the two other pieces.

I highly recommend Ryan’s article and will not attempt my own detailed legal analysis. The point to convey is that Scotland would not be the first country to have broken away from the United Kingdom. There are precedents. What has happened before and will in the event of a Yes vote almost certainly happen again is that the territory of the United Kingdom will be redefined and citizenship of rUK will be restricted to those with the requisite connections of birth, parentage or residence to rUK. Others without that connection will not qualify for citizenship of rUK.

Some residents of Scotland would therefore retain citizenship of rUK: a person born in England to parents who were British or settled, for example. A person born in Scotland without the necessary connections to rUK would not retain citizenship of rUK, however. There would be no revocation of the principle of dual citizenship, therefore, but many or most of the new Scottish citizens would not be citizens of rUK.

There is nothing controversial about this. It is how independence has always worked.

Scottish residents of rUK such as my mother would need either an opt in or opt out process for them to qualify  for citizenship of rUK. I suspect this would be an ‘opt out’ process, meaning that British citizens resident in rUK at the date of independence would retain citizenship of rUK, which is basically identical to the process proposed by the SNP in Scotland. If Scottish citizenship were also conferred on them by the new citizenship laws of Scotland then they would be dual citizens.

Free movement and the Common Travel Area

No Borders, by Carrie on 1000 Blackbirds
No Borders, by Carrie on 1000 Blackbirds

Most of us would hope that the Common Travel Area would be extended to a newly independent Scotland to permit fairly free movement across the new border. This would allow for passport-free movement and for Scots to take employment south of the border and British citizens to do so north of the border. It is not certain, though, and Scottish citizenship and migration policies might well affect decisions by rUK. Reciprocity will be important and politicians on both sides of the border will be subject to various pressures. It is impossible to guess how that might work out. The Irish example is a hopeful one, but not necessarily one that will be repeated. The threats and counter threats over currency do not bode well, for example.

Is dual citizenship really under threat?

The suggestion by Barber and Craig that the principle of dual citizenship is in jeopardy is based on a brief exchange recorded in Hansard:

Mr Michael McCann (East Kilbride, Strathaven and Lesmahagow) (Lab): Whether Scots would be able to retain UK citizenship if Scotland became an independent country.

The Secretary of State for the Home Department (Mrs Theresa May): Decisions on UK citizenship are for the UK Government. Any decisions on the retention of UK citizenship by Scottish citizens after independence would be affected by future Scottish Government policy decisions. To date, the current Scottish Government have not set out what their proposed policies would be in these areas.

Craig reads into this exchange that

The Home Secretary’s approach here marks a U-turn in existing UK policy on dual nationality which has been wholly accepting of dual (and multiple) nationality for the past sixty years.

There is in fact no reference by McCann or May to the principle of dual citizenship. Theresa May basically says nothing and this is clearly not a considered policy position. All that she does seem to say is that new Scottish citizens will not necessarily automatically be UK citizens.

That surely must be right. It would be plain bizarre if citizens of the newly independent Scotland were citizens of both Scotland and rUK but citizens of rUK were only citizens of rUK. This would be without any historical precedent and would be astonishingly one sided. Scotland, if independent, will obviously be a foreign country and, with the exception of the dual nationals, we will literally be foreigners to one another.

The threat to dual citizenship seems to me to be contrived.

Nationalism

Reading on in the Hansard debate, it is impossible not to be struck by the comment by the SNP Member of Parliament:

Pete Wishart (Perth and North Perthshire) (SNP): We just wish that the Prime Minister would come to Scotland much more often, because it increases support for independence. The right hon. Lady will know that after independence it will be possible to keep a UK passport. The real question is why, with a new dynamic Scotland in charge of its own resources and making its own peaceful contribution to the world, anybody would want anything other than a Scottish passport in Scotland.

The second sentence is obviously wrong, other than for the relatively small number of dual citizens. From the little information provided on his Wikipedia entry, it looks like Mr Wishart wouldn’t, for example, qualify for automatic retention of British citizenship as a dual national.

Bxj6xX6CcAEP9ptThe third sentence is quite the threat and suggests little value or indeed respect would be afforded by the speaker to any dual nationals permitted by the nationality laws of an independence Scotland. The nationalist campaign in Scotland has unleashed some very unpleasant vitriol, as is to be expected of nationalists. The only time I have been the victim of racial abuse has been in Scotland, when I was staying at a hotel to attend my Scottish grandmother’s funeral. It looks like whatever the outcome of the vote there will be more of that rather than less in future.

Patriotism is commendable but I fear the hatred, accusations of treason, targeting of journalists and businesses and general aggressiveness of some Yes campaigners will, like the genie, be impossible to rebottle whatever the outcome. My greatest fear of the effect of Scottish independence, though, arises when I think of the huge talent that Scots have brought south of the border and shared with the rest of us. We have achieved so much together. As foreigners to one another, that would be virtually impossible in future, in public life at least, and we will all be considerably the poorer.

Along with my kilt, I’ll be at the Let’s Stay Together rally at Trafalgar Square this evening at 6pm.

people reaching across a border Reach Out by Carrie

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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