Bringing together researchers, practitioners and policy makers working with migrants, refugees and asylum seekers in Scotland
by Sarah Craig*
The UK’s long-standing tolerance of dual citizenship, and the indications that, in the event of Scottish independence, r-UK would change its policy, and withdraw British citizenship from some Scottish citizens has been discussed previously on this blog and elsewhere.1 As explored further below, the likelihood that British citizenship would be withdrawn from those with ties to other countries (including rUK) is small, and rulings on the withdrawal of EU citizenship could be invoked to protect the British citizenship of those who would be affected (Barber (above), Tierney and Boyle).
For potential Scottish citizens, the threat of losing dual citizenship seems less of a worry than it might have been. However, by questioning the application of dual citizenship to the independence referendum context, the UK Government risks losing sight of the benefits of dual citizenship in terms of the integration of migrants and gender equality. It lays itself open to the charge that the UK Government, rather than the Scottish Government, is abandoning British values of communitarianism. It has also missed the opportunity to question other aspects of the Scottish Government’s citizenship proposals, such as its downplaying of the sovereignty aspects of citizenship.
Signs of a change in policy.
If the referendum results in a “yes” vote, it would of course be up to the r-UK Government to decide what its approach to dual nationality would be. In June 2013 the Home Secretary said that the UK Government’s decisions on the retention of UK citizenship by Scottish citizens after independence would be affected by future Scottish Government policy decisions.2 This signals the possibility, for some Scottish citizens post-independence, that their British citizenship could be withdrawn.
Existing UK policy and its benefits
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.3
According to Fransmann, the UK accepted dual nationality because it stood for good race relations and integration. If retention of their citizenship of origin on becoming a British citizen would assist eligible migrants in the process of settling down in the UK, then this was seen as a good reason for not requiring them to renounce it.4 There are substantial numbers of people in the UK who have, or are eligible for the nationality of another country, although the precise numbers are difficult to assess because some countries of origin allow dual nationality and others do not.5 Dual citizenship reduces the barriers which eligible migrants face if they wish to naturalise as UK citizens, and strengthens their bond with the UK.
The policy of allowing dual or multiple nationality also benefits women because it can enable a married woman to retain her nationality, separate from that of her husband, and also transmit it to her children, rather than relinquish her nationality in favour of his. 6
Which Scottish citizens would be affected?
The possibility that they might lose their British citizenship is an issue which would be of greatest immediate concern to those Scottish citizens who acquire their citizenship automatically. The main groups of people to whom the Scottish Government proposes to grant automatic Scottish citizenship are British citizens who are (1) habitually resident in Scotland immediately before Independence Day or (2) were born in Scotland. Scottish citizens will be able to hold dual (or multiple) nationalities. (Draft Scottish Independence Bill, the Scottish Government, June 2014, clause 18).
HM Government’s Scotland Analysis document on Borders and Citizenship (January 2014) says that individuals who had, or were entitled to, British citizenship on the date of independence may have that right protected, although they also say that this right could be dependent on any residence requirements or proof of affinity to the continuing UK ( paragraph 4.9). That document also states that the approach taken would be likely to be consistent with that taken to former citizens of the Irish Free State and the Republic of Ireland in the British Nationality Act 1981 ( paragraph 4.8), for whom dual citizenship is available under certain conditions. Bernard Ryan has suggested that British citizenship could be withdrawn from Scots born and continuously resident in Scotland who don’t have an appropriate legal connection to r-UK. He also indicates that the more conventional voluntary types of dual citizenship – such as those which apply to migrants- would be protected. 7
A real risk?
While the category of Scottish citizens who risk losing their British citizenship is unknown, it could be limited to those without a connection to the r-UK (e.g. by birth, descent or residence). They may also be able to elect to opt out of Scottish citizenship. Furthermore, CJEU rulings on withdrawal of citizenship could be invoked to protect their British citizenship rights. This could happen if Scotland’s membership of the EU took longer than the Scottish Government currently anticipates, and Scottish citizens thereby risked losing their EU citizenship rights if their British citizenship were withdrawn. As has been explained on this blog, (Barber, Tierney and Boyle above) the C JEU could be asked to protect the EU citizenship rights which Scots derive from their British citizenship. Looked at this way, the threat to British citizenship seems more imagined than real, at least in the medium term.
This begs the question – why raise the issue?
Yes and No perspectives
From the “Yes” camp’s perspective, the UK Government’s approach looks unfair. Why allow dual British and Indian or British and Canadian nationality, but not British and Scottish? For them, it provides another example of the UK Government being unwilling to think of the UK as a union of countries sharing some, but not all, patterns of governance and institutions, and progressing in that relationship.
From the “Better Together” perspective, choosing between Scottish and British citizenship flows from voting “yes” in the referendum. It makes sense because it sees Britain as a unitary state, part of which is choosing to leave.
The “Better Together” perspective might explain why the issue was raised. The problem is that, from the “yes” perspective, this looks like strong-arm tactics, a case of “this is what you can’t have”, rather than a deeper look at what the creation of a new state involves.
In its approach to dual citizenship in the referendum, the UK risks losing sight of the benefits – for integration of migrants and gender equality – of dual citizenship. But by threatening to change its approach, the UK Government has also created a space for the Scottish Government to occupy, which it has done by explicitly welcoming dual citizenship and the inclusive approaches that it brings. In so doing the UK Government has left itself open to the same charge that it has faced in its approach to the NHS: namely that it is the UK Government which has lost sight of British values of communitarianism, while the Scottish Government offers a chance to embrace them.
Of course it may be that the UK Government is not concerned about losing sight of integration or equality. Developments such as the extended possibilities for withdrawing citizenship on national security grounds, 8 and the recently introduced regulations on renting accommodation to migrants indicate as much. Whatever the reason, the UK Government has missed an opportunity to draw attention to the Scottish Government’s downplaying of the sovereignty aspects of citizenship, and its emphasis on soft borders. It has missed the chance to make the longer term point that soft borders now may not remain soft in ten or twenty years’ time, and that inclusive citizenship rules can change.
*Sarah Craig is a Senior Lecturer in Public Law at the University of Glasgow and Convenor for Law, Glasgow Refugee Asylum and Migration network (GRAMNet). This blog was originally published on the Scottish Constitutional Futures Forum on the 29th August 2014.
1. B Ryan “ At the Borders of Sovereignty: Nationality and Immigration Policy in an Independent Scotland” 2014 Journal of Immigration Asylum and Nationality Law 146 ↩
2. Theresa May, House of Commons Debates 10 June 2013, col 16. ↩
3. Fransmann’s British Nationality Law 3rd edn, Bloomsbury, 2011 p27; C. Sawyer and H.Wray Country Report United Kingdom, EUDO Citizenship Observatory, November 2012. ↩
4. Fransmann n3 above ↩
5. Sawyer and Wray, n3 above p14. ↩
6. Fransmann, opcit n3 above, pp27-28, Sawyer and Wray opcit n2 above.Fransmann, opcit n3 above, pp27-28, Sawyer and Wray opcit n2 above. ↩
7. B Ryan,op cit, n1 above. ↩
8. See e.g. Fransmann op cit n3 p31 ↩