Glasgow Refugee Asylum and Migration Network (GRAMNet)

Bringing together researchers, practitioners and policy makers working with migrants, refugees and asylum seekers in Scotland

What goes with Dual Nationality? Valuing integration and equality.

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previously on this blog and elsewhere.1 As explored further below, the likelihood that British citizenship would be withdrawn from those with ties to other countries (including rUK) is small, and rulings on the withdrawal of EU citizenship could be invoked to protect the British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This signals the possibility, for some Scottish citizens post-independence, that their British citizenship could be withdrawn.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.

Conclusion

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

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4 comments on “What goes with Dual Nationality? Valuing integration and equality.

  1. Colin Yeo
    September 12, 2014

    Interesting article, but I think maybe seriously misguided on the independence process and the nature of dual citizenship if I understand the piece correctly.

    Citizens of newly independent countries do not usually retain the citizenship of the original country. It is always a risk to say ‘never’ but I’d be interested to know of any examples of this ever occurring. Indian citizens did not become dual nationals on independence, nor did Canadian ones or any other former colony of the United Kingdom on independence from the UK. I’m not sure what happened with citizens of the newly formed Republic of Ireland on independence without looking it up in Fransman (with one ‘n’), though, I confess.

    There is no proposed change of approach to dual citizenship by ‘rUK’. There is certainly no ‘U-turn’. All that would happen is what has happened countless times since the winds of change started to blow: citizenship of ‘rUK’ would shrink with the territory of ‘rUK’. Otherwise half the world would still be British citizens as well as citizens of their own countries, which would be absurd.

    No doubt some new Scottish citizens would retain ‘rUK’ citizenship, whatever that would be called in future – just the same as citizens of any other country would if they qualify for what is currently called British citizenship. Again, this is common in previous cases of independence. Unlike some other countries (India being one of them) the UK has no bar to possessing British citizenship as well as other citizenships. For example, if a person from ‘rUK’ living in Scotland and eligible for new Scottish citizenship were born in what becomes ‘rUK’ (e.g. Berwick) to a parent with settled status or what was formerly British citizenship and so on. There would probably then also be some sort of simple registration process for Scots living in ‘rUK’ who wanted to be citizens of ‘rUK’, perhaps as well as Scottish citizens. An ‘English’ person living in Scotland and eligible for Scottish citizen would therefore have both citizenships, just as an ‘English’ person who was resident in France and had a right to French citizenship (through marriage or residence and naturalisation for example) would have both citizenships. A Scot born in Gretna with no parents born outside Scotland would not, almost certainly.

    Fransman’s authoritative text is literally full of examples of these practices as various countries became independent and their new citizens lost the status of Citizens of the United Kingdom and Colonies (the forbear of British citizenship until the British Nationality Act 1981 came into effect in 1983). It is the whole point of Laurie’s book, really.

    It would be bizarre if a situation were permitted to develop where all Scots were citizens of ‘rUK’ having voted for independence from ‘rUK’ but other citizens of ‘rUK’ were not Scottish citizens. Surely it is an inevitable part — indeed arguably the whole point — of the independence process for any new country that citizenship changes for the residents of the new country? Looking at the new proposed Scottish citizenship laws, I certainly do not see any suggestion that residents of ‘rUK’ with no connection to Scotland would become Scottish citizens, so to expect the same of ‘rUK’ seems rather one sided.

    Free movement of people between Scotland and ‘rUK’ would inevitably be impeded to some degree, therefore, even if the Common Travel Area included the newly independent Scotland and Scotland remained or became part of the EU. Most of us would be citizens of different countries subject to the immigration laws and controls decided by the politicians of the day of both countries (hopefully liberal ones) but a minority would be dual citizens.

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    • Sarah Craig
      September 15, 2014

      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.

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  2. Colin Yeo
    September 12, 2014

    Looking again at the Hansard debate you cite, the comment by the SNP MP is quite striking and reads as an implicit threat to dual citizenship in Scotland after independence, or perhaps just as a simple ‘English not welcome’ line. As I’ve tried to explain in my earlier comment, there is no such threat to dual citizenship in ‘rUK’. I guess it is ‘just politics’ but it is a bit worrying to hear nationalists espouse that sort of thinking:

    “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.”

    Like

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This entry was posted on September 12, 2014 by in Comment.
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