- BY Colin Yeo
Dual citizenship and Scottish independence
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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.
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
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.
The 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.
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30 responses
Surely the Irish example is the most pertinent (the only one involiving break up of UK as well as colonial independence)- and Irish citizens were in fact also British subjects. SO there does seem to be precedent for Scots being British…
Not really, Philip. Read up on some history. British subject meant nothing after 1948, and full independence was only really achieved by Ireland in the late 40s. Very different to what is proposed for Scotland.
Disappointed a smart guy like you Colin has fallen into the trap that the people of Scotland voting yes are doing it because you and the Daily Mail / Torygraph think half the population of Scotland are racist bigots. The Yes campaign is not about ‘hatred’ as you put and your suggestion that it is will be offensive to many people in Scotland. If you want to talk about hate – why not mention the English fans at the recent Switzerland match chanted loudly in numbers ‘f off Scotland we’re all voting yes’ (its on Youtube)? This not long after the Scottish cheered on the English team at the Commonwealth Games. The people of Scotland are tired of being ‘love bombed’ at the same time as being told they will be punished if they vote no. iScotland offers hope to English families in exile. Power to vote for the people of Scotland to elect the government they want (like most independent countries). Enshrinement of human rights in a Written Constitution. To protect and enhance life in Scotland REGARDLESS OF COUNTRY OF ORIGIN OR INCOME. If you really love someone, don’t keep them prisoner.
You basically suggest that it is invalid or illegitimate for me to hold or express views that are not yours, that I am deluded and am forcing the Scots to stay part of the Union by keeping them prisoner. I’m sorry you think any of that.
Thanks Colin – enlightening as always!
Thanks for your comments, Colin. As I say in my piece, in the event of independence, it would be up to the rest of the UK to decide what its approach to dual nationality would be.
My piece was motivated by sadness that the question of dual nationality was at issue at all. I acknowledge that I look at it from the medium term perspective, namely, whether or not a current British citizen would lose that citizenship. From what you say, you are not questioning my point, which is that dual citizenship has benefits in terms of promoting integration and gender equality, and that it is a good thing that the UK has tolerated it for many decades. If I understand you correctly, you are taking issue with my application of this concept to what might happen in the future, and whether Scottish citizens without any connection with the rest of the UK ( or any other country) could be British, and whether British citizens without a connection to Scotland ( or any other country) could be Scottish. I will come back to this, but I do agree with you that these groups of future citizens would probably not be dual nationals.
As to misunderstanding dual nationality: my piece dealt with the situation of people who automatically become Scottish citizens at independence.
I described the prospect of that group of current British citizens losing that status as being more imagined than real because, as well as being British citizens, they are also European citizens. While the attitude of the EU to Scottish membership cannot be guaranteed, and has been exhaustively discussed over recent months, there is well nigh a consensus that Scotland would ( at some point) be admitted to membership of the EU, and that, if the question should arise in any transitional period, there would be strong arguments that the CJEU would protect the European citizenship rights of British citizens who automatically become Scottish citizens at the point of independence, whether they have any connection with the rest of the UK or not.
Yes, changes in citizenship come with independence. But, for many people in Scotland at present, citizenship is very far from being the whole point. The ties that bind British families together are complex and intertwined, and the blogosphere is replete with comments by people explaining why, despite feeling both English and Scottish, they will still vote Yes on Thursday, or why feeling British and Scottish means they will vote No. Obviously, these feelings of identity are different from citizenship granted by a state. I am sorry if you feel I have not done justice to the concept of dual citizenship, or to Fransman’s great work on this topic. I don’t have space to do justice to my own journey here, so please bear with me.
What has sneeringly been called “independence lite” has a basis in the fact that there are separate institutions in Scotland, and I don’t just mean a separate legal profession and legal system, which date back much further than the establishment of the Scottish Parliament. For those who see the UK as a union of countries, rather than a unitary state, part of which might choose to break away, the idea that this relationship could grow and develop, even lead to independence eventually, might explain the “soft” version of independence that is being put forward. It is possibly also the reason why the Yes camp has attracted the support of those who do not necessarily see themselves as pro independence, but who see real problems with the way we are governed at present. Perhaps this goes some way to explain why comparison with other independence moments doesn’t seem to fit. This is without doubt causing huge pain to those who feel intensely Scottish, who also see problems with the way we are governed but who, out of solidarity with the rest of the UK, will vote No. Whatever the outcome, how Scotland moves on from here, given that people who are agreed that change in the way that they are governed is needed are having to make such a stark choice about how to bring it about, is causing huge concern here.
To get back to citizenship, I say in my post that I am addressing the medium term, whereas you seem to be looking at it from a longer term perspective. I agree that future Scottish citizens without a connection with the rest of the UK would be unlikely to be entitled to British citizenship, and the same would apply to citizens of the rest of the UK with no ties to Scotland. I am sorry if this is not clear enough in my post. I also say in my post, as others have too, that the Scottish Government has downplayed the sovereignty aspects of citizenship, and that while it has emphasised soft borders, this, and rules about citizenship, can change. I even make a link to your very thoughtful “no borders” post on the free movement blog to back this up. Like many people in Scotland, I would rather not face the choice we are being confronted with on Thursday. Speaking personally, the choice has come too soon. But that does not stop me from feeling sad about what the UK might lose if it stopped tolerating dual citizenship, even only in relation to a small group of its citizens.
All the countries you mentioned, except Ireland, were colonies of the UK, and became independent under old nationality laws. Ireland was an integral part of the UK, as is Scotland, so Ireland was treated differently and there is no reason why Scotland wouldn’t be as well. The only country to become independent under current nationality law was St Kitts and Nevis in 1983, and they were all allowed to keep UK citizenship when they became independent, because under the current law you can only be stripped of your UK citizenship against your will under very particular circumstances (essentially, terrorism against the UK).
Interesting, thanks for this.
After 1948 the law changed, which happens. But for 26 years Irish citizens were British subjects. That would take Scottish citizens to 2042 if Salmond’s target date for independence was met.
All I can do is repeat that the settlement for Irish independence and citizenship was that of 1948. The situation between 1922 and 1948 was always a fudge for various historical reasons, perhaps connected to the fact there was a war to achieve independence and the concept of citizenship did not exist in the UK or Ireland. Since the establishment of the Commonwealth and the pivotal meeting at which it was agreed each independent Commonwealth country shall have its own citizenship, it is very unlikely to the point of virtually inconceivable that all Scots would remain British citizens. They might remain British subjects, but that term is meaningless.
It seems completely pointless to strip Scots of UK citizenship (except as an act of revenge for daring to become independent) when the second generation will no longer have UK citizenship anyway. The first generation born in Scotland after independence would be citizens by descent, and they can’t pass that on to their children born abroad;that would obviously apply to Scots as well. An attempt to strip citizenship under the current law could also lead to major legal action, since the precedent was set with St Kitts, and why bother making new legislation just for the sake of one generation from a small country?
It isn’t a question of “stripping”. Setting up an independent country involves creating a new body politic and citizenship which is new and different to the old one. The whole point of proper independence rather than devolution is to break free of the UK. And the Scots are not offering any reciprocal arrangement as things stand. I cannot see any real prospect of Scots retaining the old citizenship that they would effectively be renunciating.
But see above comment about St Kitss and Nevis…I think the truth no one really has a clue what will happen so we’re all speculating on incomplete information.
And again I say, Scotland is not a colony, it is a full constitutional partner of the UK, and would be making a fully constitutional exit; there is no reason to believe that it would be treated less favourably than an actual former colony, i.e., St Kitts. It is not an effective renunciation any more than moving to another country is an effective renunciation. The citizenship of individuals is a separate issue from the constitutional and statehood arrangements; the way current nationality law is written, any deprivation of citizenship can only be if the Home Secretary deems it conducive to the common good, i.e., it doesn’t have provision for depriving citizens of their citizenship if their bit of the UK leaves. As the ‘conducive to common good’ provision has only been used for terrorists and people who obtained citizenship by fraud, it would be pretty drastic and legally questionable to use that provision to deprive Scots of citizenship just for being Scots. The law would have to be changed, because the St Kitts precedent would mean huge numbers of appeals and legal cases from people who want to stay British if the law didn’t change, and as I said above, this would just make it look like petty revenge. If they were to announce that they would remove British citizenship for people resident in Scotland who weren’t born in or had a parent from the rUK, that could send loads of people over the border ahead of independence day, and I sincerely doubt that Westminster would want that!
The issue of dual nationality is going to be a lot more complex because of the EU. While the rest of the UK may not seek to punish Scotland it is pretty much guaranteed that Scotland would not be allowed to join the EU. José Manuel Barroso made it very clear that Scotland joining the EU would require a full and unanimous vote of the member states. Spain would probably veto Scotland’s application as they have continuously vetoed Kosovo. The Common Travel Area would allow Scots to move to the UK but they will likely lose their free movement rights in the rest of Europe. This issue of dual nationality in such a context becomes much more problematic.
Spain has said they would not veto Scotland’s membership if the UK supported Scotland’s membership, which it is bound to do by the Edinburgh Agreement. A number of EU legal experts have called Barroso’s claims nonsense, and it’s clear that they were intended a) as a warning to Catalonia and b) as a sop to the UK in the hopes that they would support Barroso’s candidacy for the NATO top job. The EU would not benefit from Scotland being out, and Spain in particular would lose some very lucrative fishing rights.
It is somewhat concerning that the Article predicts that foreigners could not take an active part in the public life of our great country. Nationalism does take various forms.
So, would Scotland be considered not in the UK retrospectively? For example, if someone was born in Edinburgh before Scottish independence, would that mean that after independence they are no longer considered to have been “born in the UK” for nationality purposes?
That would mean most Scots would no longer be British because they would no longer have been “born in the UK” and neither would their parents (so even if their grandparents had been born in the UK, their parents would only be British citizens ‘by descent’). It wouldn’t do anything to those naturalised/registered in Scotland of course (and those born in Scotland whose parents were naturalised/registered in Scotland would be British citizens by descent)-nationality law does not require that you be “naturalised in the UK”. But it would be awfully messy, because there are people living outside Scotland who were born in Scotland, and they too would no longer be “born in the UK” on this interpretation, so I don’t think retrospective effect works.
On the other hand, if people born in Scotland will continue to have been “born in the UK”, then it is very difficult to see why they should be excluded from the citizenship rights that normally accompany that fact (when combined with various other facts, like “pre-1983” or parentage).
Read Fransman! The geographic territory capable of producing the necessary connection gets redefined. It is effectively retrospective, yes.
And yes, of course it would be messy and imperfect.
I agree, very concerning.
Interesting. So, take two children, A&B, born in Edinburgh in 2005, who live in the UK for the next 10 years (and in England from 2006 onwards). Neither have any other claim to citizenship, but both try to register under the 10 year rule.
Child A is lucky. His registration application is processed before independence and, once registered, he is British. Child B’s application is processed after independence, so he isn’t British- although there is always discretion.
There are also all sorts of non-nationality immigration law retrospective effect problems (which perhaps could be avoided by confining retrospective effect to nationality). For example, Worker O, an EEA national, has been exercising treaty rights since 2011. He happily applies for permanent residence in 2016, only to find out that, as he spent six months in 2012 working in Glasgow, he wasn’t exercising treaty rights in the UK for a continuous 5 year period…
Family law problems too. Plenty of court orders saying you can’t take a child outside the UK- retrospective effect means a number of them will have been breached unknowingly.
There is a different legal system in Scotland and orders are already confined to E&W. Yes, the break up of a country has all sorts of awkward and unfair effects on individuals.
These examples are absurd. But retrospective effect is absurd. That it is why it is well recognised that law makers should avoid it where possible.
If it is correct to say, that in the current state of nationality law, an independent Scotland would create retrospective effects, then (in the event that an independent Scotland is a real possibility) we should seriously consider changing nationality law to prevent them.
What would be really absurd is that a Scottish citizen who loses British citizenship and wishes to regain it, may need to be resident for 5 years and take the Life in the UK test!
For some fun, consider the rights of a new Scottish citizen by descent who has spent the (only) 3 years of his life on the Isle of Man if Scotland is in the EU, or out of the EU.
Granted that there will be awkward and unfair effects on individuals, ought it not be an aim of those negotiating independence and related legal consequences to minimise them? I would suggest that aim is best fulfilled by avoidng retrospective effects if possible and not depriving anyone of British Citizenship without their consent. You may say that is legally very difficult to acheive given the precedents. Maybe. But it should at least be considered.
What about those of us who are not born in scotland but currently reside in it? Having read the Scottish governments plan that all residents automatically become scottish citizens, what happens if we don’t want to become a scottish citizen. Also with regards facta implementation dual nationality surely causes problems for financial institutions who have to prevent costly reporting to all countries signed up for facta, have said that they will refuse dual nationals
One of the more minor bonuses from the referendum result is that I can postpone my apology to Colin for misunderstanding the basis of nationality law for at least another generation :)
Did feel like I was banging my head against a brick wall on that, Philip! Nationality law is a fascinating subject, and it is very hard — and existential at the same time — when a state has to define or redefine its constituent citizens. Injustice is an absolutely inevitable part of the process. I’ll work up a course in the membership section at some point, but have several others I want to do first, including on asylum and EU free movement law.
I think I would have been entitled to a Scottish passport as a dual citizen under the SNP’s proposed regime, and would perhaps have needed to consider whether to register my children as Scottish. I’m glad we did not have to make such decisions. One passport is too many already.