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Bernard Ryan: Downplaying Sovereignty? Citizenship in Scotland's Future

Were it to become independent, Scotland would have its own legal citizenship, and would in principle be free to define the circumstances in which that status was acquired. Scotland’s Future has added new detail concerning the content of Scotland’s citizenship law in the event of independence. In the white paper, the Scottish Government’s approach is a gradualist one, taking current British citizenship law as its starting-point, and downplaying the implications of a separate citizenship. While this approach may well have presentational merits, it will be suggested here that it runs into the difficulty that an independent Scotland could not control the relationship between its citizenship and that of a post-independence United Kingdom.

Acquisition of Scottish citizenship

If a referendum vote were positive, some categories of person would acquire the new Scottish citizenship automatically on the date of independence. The alternative, of making citizenship entirely voluntary, would be impractical, and would risk leaving the new state with only a small citizenry. Accordingly, Scotland’s Future spells out that citizenship would be acquired automatically by two categories of British citizen: those habitually resident in Scotland on the date of independence, and those who were Scottish-born, irrespective of place of residence.

It is revealing that the provision for automatic acquisition in Scotland’s Future is narrower than the SNP’s policy previously articulated in A Constitution for a Free Scotland in 2002. Then, Scottish citizenship would have been automatic for “every person” whose “principal place of residence” was in Scotland on the date of independence, or who had been born there before it. In contrast, the current approach is more pragmatic: by taking British citizenship as the starting-point, it avoids the criticism that the core group of citizens is unnecessarily wide, or that Scottish citizenship is being imposed upon Scottish residents or Scotland-born persons who are not British citizens.

Scotland’s Future also outlines a series of ways in which Scottish citizenship could be acquired after independence, either as of right through registration, or upon application to a decision-maker. Here, the Scottish Government’s approach follows much of current British law on the acquisition of citizenship. So, for example, children born in Scotland would acquire citizenship automatically if - but only if - one of their parents was a citizen or settled in Scotland. Equally, it would be possible for all persons to naturalise after a period of residence in Scotland immediately preceding the application.

For post-independence cases, there are also important differences from British law, which flow from the desire to open citizenship to a wider category of persons with Scottish connections. In particular, Scotland’s Future provides that Scottish citizenship would be available by registration to all those with either a parent or a grandparent who was eligible for Scottish citizenship. In contrast, British nationality law makes provision for only the first generation born outside the United Kingdom to acquire citizenship as of right. In the same vein, Scotland’s Future provides for a route to naturalisation for all persons who have lived in Scotland for at least ten years at any time, and who have “an ongoing connection with Scotland”. This route is without a direct parallel in current British law, and appears designed to cater for periods of residence which ended prior to independence.[1]

Relationship with British citizenship

Probably the most difficult questions in this field for the Scottish Government concern the relationship between a future Scottish citizenship and British citizenship. If independence were approved, many of those set to acquire Scottish citizenship – whether automatically or through registration - would wish to have both Scottish and British citizenship. Equally, among those set to acquire Scottish citizenship automatically at independence, there would be some who wished to decline the new status, and to have British citizenship alone. To date, the pragmatic strategy of the Scottish Government has been to accept each of these possibilities, in the hope that the United Kingdom will agree, but without any capacity to induce it to do so.  

Take first the question of the dual British and Scottish citizenship, the principle of which has been endorsed by the Scottish Government in Scotland’s Future.[2] In relation to the impact on United Kingdom citizenship law, the Scottish Government’s position is that “if Westminster decided that Scottish citizens could not also be UK citizens it would be inconsistent with its approach to every other country.”[3] This argument is a rather weak one, however, as dual citizenship following the independence of part of a state is fundamentally different to that which arises from an individual’s personal or parental connection to two states. A post-referendum United Kingdom would not be obliged to accept dual Scottish and British citizenship in all cases.[4]  There might well be pressure in particular to exclude the dual nationality of those who became Scottish citizens automatically, unless they had a personal connection to the rest of the United Kingdom (e.g. through residence, or service in Britain’s armed forces).  

The eventual position as regards opting out is also highly uncertain. Scotland’s Future accepts the possibility of opting out, while insisting on the international law principle that a person could not become stateless as a result.[5] In practice, the possibility for an individual to opt out would therefore depend upon their retention of the citizenship of the post-independence United Kingdom, which the Scottish Government cannot control.  It is presumably for that reason that the discussion of the topic in Scotland’s Future ends up in the weak formulation that “information on how to opt out will be made available before independence”, rather than before the referendum.

What of sovereignty?  

Ultimately, there is something of a paradox at the heart of the Scottish Government’s approach to citizenship in Scotland’s Future. A positive argument could be made for sovereignty in this area, that independence would give Scotland its own distinct citizenship, and that it would then have the freedom to reflect Scotland’s circumstances and interests in deciding on its allocation. The details of what is proposed – especially in the extensive provision for those with Scottish connections – show that the current Scottish Government would itself be willing to rely upon the freedom a distinct citizenship would give.

Despite these possibilities, in Scotland’s Future, the Scottish Government has chosen not to make sovereignty over citizenship part of its case for independence. It has preferred instead to give the impression that change in this area would be limited and gradual in nature. In so doing, it is obliged to live with the difficulty that the eventual position of individuals would depend upon United Kingdom policy, about which there can be no guarantees. It remains to be seen how successful this pragmatic downplaying of sovereignty over citizenship will prove in the rest of the referendum campaign.

Bernard Ryan is Professor of Law at the University of Leicester


[1] It may also be intended to provide a route to citizenship for persons whose residence has not always been lawful.

[2] Scotland’s Future, p 272.

[3] Scotland’s Future, p 497 (Question 376).

[4] As the Home Secretary put it in June 2013: “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” (Theresa May, House of Commons Debates, 10 June 2013, col 16).

[5] Scotland’s Future, p 497 (Question 375).

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