Scotland referendum 2014: the impact of independence on borders and citizenship

Seven million rail passenger journeys are made between Scotland and the rest of the UK each year, according to figures in the UK Government's Scotland Analysis paper, Borders and Citizenship.  There are also over 800,000 air passenger journeys between Scotland and Northern Ireland, and over 23 million vehicle crossings between Scotland and England.

Scottish independence would create new international borders between Scotland and the UK.  How might these affect the ease of movement of people between the two states, and entitlement to British citizenship?

Would the UK operate passport checks at the border between the UK and Scotland?

There is uncertainty about whether an independent Scotland would become part of the Common Travel Area between the UK, Channel Islands and Republic of Ireland or be subject to other border arrangements, such as the EU's Schengen Area.  The outcome of these decisions would have a significant influence on the UK's approach to border controls in the event of Scottish independence.

A Common Travel Area between the UK and Scotland?

The UK has a ‘Common Travel Area' (CTA) with Ireland, Jersey and Guernsey and the Isle of Man.  The CTA is essentially an administrative and extra-legal agreement.

The Scottish Government's White Paper Scotland's Future anticipates that an independent Scotland would continue to be part of the CTA. It considers that free movement between Scotland and the UK and Ireland is an “essential part” of Scotland's social union with the UK and Ireland.

The CTA's existence dates back to the establishment of the Irish Free State in 1922.  The UK Government did not want to impose passport and immigration checks at the UK-Irish border.  It proposed that the Irish Government could instead continue to apply UK immigration controls, and the Irish Free State agreed.

CTA states have different approaches to conducting immigration checks on CTA travellers.  The UK does not make routine immigration checks on people travelling within the CTA or require them to show a passport or national identity card for immigration purposes.

A person who has been allowed to enter one part of the CTA will not normally require permission to enter another part of the CTA whilst their original permission is still valid.  However, there are exceptions to this principle.  For example, ‘visa national' travellers need to have a UK visa if they enter the UK from another part of the CTA.  In practice, the absence of immigration controls can lead to people inadvertently entering the UK without permission.

The CTA does not provide for mutual recognition of visas issued to non-European Economic Area (EEA) nationals.  There has been talk for several years about introducing mutual visa recognition and, eventually, some joint visa arrangements for non-EEA nationals wishing to travel between CTA states.  These ideas have not yet been realised, although Ireland has launched its own visa recognition initiative which allows certain non-EEA nationals in the UK to visit Ireland without needing a separate Irish visa.

A CTA with Scotland could have some practical advantages from the UK's perspective, bearing in mind the nature of the UK's borders with Scotland and volume of cross-border passenger movements, and potential costs and side-effects of maintaining controls (such as deterring visitors).  A CTA could allow for light-touch border controls between the UK and Scotland similar to the immigration controls between Ireland and the UK.

However, the UK Government has warned that the Scottish Government cannot assume that Scotland's participation in the CTA would be acceptable to the other members.

The UK Government is likely to require some assurances about the robustness of Scottish border security measures, and the extent to which Scotland's immigration requirements would be compatible with its own controls.  If Scotland chose to introduce a significantly more liberal immigration system whilst being part of the CTA, the UK Government might become concerned that Scotland could become a route into the UK for people who might not otherwise be given permission to enter.

Therefore it is likely that the UK Government would require some ongoing cooperation with its Scottish counterparts on immigration and border issues as a condition of remaining in the CTA.  This already happens between existing CTA states.  There is limited information about the nature of such cooperation in the public domain, although a December 2011 joint statement signed by the UK and Irish Governments “regarding co-operation on measures to secure the external common travel area border” provides some examples.

The Scottish Government has indicated a willingness “to work with the Westminster and Irish governments to ensure that immigration controls and practice meet certain shared standards”.  Its White Paper states that “there are no circumstances in which the Scottish Government would countenance any measure being taken that jeopardized the ability of citizens across the rest of the UK and Ireland to move freely across our borders as they are presently able to do.”

However, citing Ireland as an example, it also points out that the degree of cooperation required falls short of complete “harmonisation” of standards and processes, and does not prevent participating states from operating their own immigration systems.

Scotland, the UK, and the Schengen Area

In the event of independence and negotiations on its EU membership, the Scottish Government seems likely to propose that it should be able to participate in the CTA rather than being required to join the Schengen Area.  It is possible that the UK Government would support Scotland's request, on the grounds that such an outcome would also be in the UK's best interests.

Successive UK Governments have been opposed to taking part in the Schengen Area, which enables people to move between participating states without being subject to routine border checks.

It would not be possible for Scotland to be part of the Schengen Area as well as the CTA, because this would compromise the external borders of both the UK and Schengen Area.  Therefore, more extensive border controls would be needed at UK-Scotland borders if Scotland joined the Schengen Area and the UK remained outside.

If Scotland did join the Schengen Area, the UK government might come under greater domestic and international pressure to join it as well.  This could be particularly likely if maintaining UK-Schengen border controls at the UK-Scottish borders led to significant costs and disruption.

UK participation in the Schengen Area would in turn effectively mean the end of the CTA between the UK and Ireland.  One possible outcome is that Ireland would also choose to join the Schengen Area.  Ireland has historically been less opposed than the UK to the idea of joining the Schengen Area.  However, it decided not to join, so that its citizens could continue to benefit from the CTA with the UK.

How would independence affect eligibility for British citizenship?

The Scottish Government would be responsible for determining the eligibility criteria for Scottish citizenship.  However, Scottish independence would also raise some questions for the UK Government to consider about eligibility for British citizenship.

It is not possible at this stage to predict how these issues would be resolved.  Much is likely to depend on the outcome of detailed discussions after independence.

Would some people lose their British citizenship?

Current British nationality law – the British Nationality Act 1981 - does not prevent British citizens from holding dual/multiple nationalities.

Assuming that Scottish nationality law also allowed for dual citizenship, British citizens who became eligible for Scottish citizenship could, in theory, become dual Scottish/British citizens.

However, it is possible that the UK Government would decide to impose some qualifying restrictions on who could continue to claim British citizenship – for example, by requiring a historical or ongoing connection to the rest of the UK, or requiring people to actively choose to retain their British citizenship.  This would have some similarities with the approach taken in 1949 towards citizens of Eire after the Republic of Ireland was established.

Would descendants of British citizens living in Scotland be eligible for British citizenship by descent?

Generally speaking, eligibility for British citizenship can descend to one generation born abroad.  That means that a child born overseas to a British citizen automatically acquires ‘British citizenship by descent', but the following generation does not automatically become British if also born overseas.  This could have implications for future generations of descendants of British citizens living in Scotland after independence.

Would children born to Scottish citizens living in the UK acquire British citizenship?

Under the British Nationality Act 1981, children born in the UK automatically acquire British citizenship at birth if, at the time of their birth, one of their parents is British or ‘legally settled' in the UK (i.e. is ordinarily resident in the UK and not subject to any immigration time restriction).

In line with the CTA provisions, Irish nationals are generally able to enter and reside in the UK without requiring leave to enter, and are not subject to time restrictions whilst present in the UK.  Generally speaking, they are automatically considered to be ‘settled' for nationality purposes, and therefore children born in the UK to Irish citizens resident in the UK may acquire British citizenship at birth.

It is not known whether similar provisions would be made for Scottish citizens and their UK-born descendants.