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Sarah Craig: Immigration in the White Paper - 'Continuity of Effect' and its Limits

Immigration is a reserved matter under the Scotland Acts, so independence would enable a Scottish Government to shape its own immigration policy for the first time. A short section in Chapter 7 of the White Paper promotes a more protection-oriented approach to asylum, and places managed migration more centrally than the UK Government does. But the White Paper also signals that the scope for an independent Scotland to promote less restrictive approaches to migration than its neighbours would be limited, not by an absence of power, but by a desire to adopt a similar approach to general migration flows to that taken by its neighbours, as a means of maintaining, as far as possible, current relationships with the rest of Great Britain and Ireland, and with Europe. 

The central place given to managed migration in the White Paper includes the introduction of a targeted points-based system, regional incentives to live and work in areas of low population, and minimum salary thresholds for non-EU migrants which align better with Scotland’s average incomes, rather than the higher UK averages. Scotland’s continuing need to attract international students would be addressed, and the post-study work visa would be reintroduced. The Scottish Government’s stance is presented as one which is more welcoming than that of the UK Government, and to some extent the distinction is easy to draw: the crude approach of the recent “Go Home” campaign would never be adopted. 

On asylum, the proposal to establish a Scottish Asylum Agency, separate from immigration, could encourage fresh approaches to the assessment of asylum claims. There is also a commitment to continuing the Scottish Government’s present approach of promoting the integration of refugees and asylum seekers from the day they arrive, not just once leave to remain has been granted, as happens in the rest of the UK, and this commitment is reflected in the undertaking to give asylum seekers access to the employment market, education, benefits and accommodation, even though the detail regarding the threshold criteria which would apply is lacking. At a symbolic level, the promise to close Dungavel Immigration Removal Centre and to end the practice of dawn raids mark an important commitment to human rights principles, even with the acknowledgement that detention and forced removal would occasionally be used.

Looking outside of managed migration and protection and towards migration flows across the EU and beyond, the stance appears less welcoming. In a sense Scotland’s geographical position - next to a more heavily populated neighbour, part of the islands of Great Britain and Ireland, and in the North-western reaches of the EU- is reflected in the White Paper’s stance on migration flows more generally. It is as if the principle of “continuity of effect”, invoked elsewhere in the White Paper in relation to the EU, is being applied here in relation to the Common Travel Area (CTA) between the UK and Ireland. The White Paper sees the CTA continuing to apply to Scotland, partly because of the history, culture and borders which  it shares with its CTA partners, but perhaps more convincingly, because it would be convenient for all partners if the CTA arrangements, which permit travel within England, Wales, Scotland and Ireland without border controls, were to continue as before. In return for being able to meet the claim that passports would have to be shown at its neighbours’ borders, the White Paper offers to assume the constraints which membership of the CTA would impose. Most significantly,  being part of the CTA is seen as inconsistent with being part of the EU’s Schengen free travel area, and so Scotland would “opt out” of the Schengen system in the same way that the UK and Ireland has. Or nearly. There could be some scope for Scotland to adopt different immigration rules, and here the approach taken by the Republic of Ireland would be followed.( Q and A Section Qs 353-357


But in relation to that body of EU measures which makes up the Common European Asylum System (CEAS), the UK has not simply opted out. Rather it has opted in to those CEAS measures which tend to deflect asylum seekers away from Northern EU states and towards Southern and Eastern ones, such as the Dublin regime (Regulation (EU) No 604/2013) and the EURODAC system, and has opted out of the ones which promote protection, such as the recast Procedures and Qualification Directives (2013/32/EU; 2011/95/EU), which set minimum standards across the EU for identifying people who require international protection, and for processing their claims.


And Ireland has tended to follow that lead, most notably perhaps in relation to the Returns Directive (2008/115/EC), which would have imposed a maximum period of detention under immigration powers. Given its stated position on detention in the White Paper, a future SNP Government would presumably wish to opt in to this measure. Hopefully, any future Government in Scotland (independent or not) would adopt an approach which endorses EU fundamental rights, but perhaps that presumption can only be tested much further down the line.


The stance which the White Paper sees a future independent Scotland taking on migration flows across the EU and further afield is therefore more or less in line with that of its neighbours, but there would be scope for some variation. Like the rest of the UK, there would still be minimum salary thresholds for non-EU migrants, but they would be lower.  There would be more managed migration, including regional migration to meet Scotland’s different demographic needs. There would be room for some more protection- oriented approaches, and variations could be procedural or substantive.  It is therefore worth thinking about what some of those could be.


Testing the limits?


Procedurally, two variations could be made. First, the fresh approach to asylum which the establishment of a Scottish Asylum Agency promises could incorporate gender-sensitive approaches, if the establishment of that Service includes a reading across of the emphasis on equality found elsewhere in the White Paper. Second, the extension of the Scottish Tribunals Service into reserved areas could ensure the continued access of immigration cases to appeals on an equal basis with employment, social security etc,[1] rather than taking the restrictive approach envisaged in the UK Government’s current Immigration Bill, which would substantially replace immigration appeals with internal review by the Home Office.


Substantively, as well as adopting its own managed migration policies, Scotland could take a different approach to “opt ins” and “opt outs” in the CEAS and in other parts of the EU’s Area of Freedom Security and Justice. One final, and perhaps obvious, substantive point could be made. The low number of spontaneous asylum arrivals in Scotland means that more may be required to demonstrate the seriousness of the commitment to protection voiced in the White Paper.  Continuing a version of the dispersal programme which relieves pressures felt in the South East of England by accommodating asylum seekers in Scotland and elsewhere; or cooperating with UNHCR to reduce the ordeal of the refugee journey by reintroducing resettlement would each  demonstrate that commitment.


On immigration, the White Paper seeks to maintain a balance between the pressures of meeting Scotland’s demographic needs, being a good global citizen, addressing principles of protection  and getting on with its neighbours. Now that the White Paper is published, and as all the stakeholders in the debate consider their positions, there is scope for thinking in more detail about the balance between those pressures.


Sarah Craig is a lecturer in Public Law at the University of Glasgow and Co-Convenor of the Glasgow Refugee Asylum and Migration Network (GRAMnet)

[1] Inclusion would seem to be in line with the proposals in the current Tribunals (Scotland) Bill, which reflects the two tier structure of the reserved tribunals.  Inclusion would also be in line with the commitment, following the recent Scottish Civil Courts Review ( 2009),  to shifting business away from the Court of Session and towards lower courts and tribunals. In the Q and A section( Qs 405-408), and in Chapter 10, the White Paper says that the Scottish Tribunals Service would take over responsibility for appeal tribunals dealing with reserved matters.

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