Scottish Affairs CommitteeWritten evidence from Professor Bernard Ryan, Law School, University of Kent

Introduction

If Scotland were to become independent, its relationship with the United Kingdom would have to be defined in the fields of nationality law and immigration law and policy. This note offers a summary of the relationship between the Irish state1 and the United Kingdom in those fields, and some thoughts on possible implications for Scottish independence.

1. Nationality Law

1.1 The Irish case

A new nationality

The nationality law of a new state must necessarily provide for two matters: an initial population of nationals on the date of independence, and the acquisition and loss of nationality on an ongoing basis.

In the case of the Irish state, the initial population was defined by Article 3 of the Irish Free State Constitution of 1922. Article 3 conferred Irish Free State citizenship upon a person if they were domiciled in the “area of the jurisdiction of the Irish Free State” on the date the state was founded (6 December 1922), provided (a) they had been resident in that area for the previous seven years, or (b) they or one of their parents had been born in “Ireland”.2

A full framework of nationality law, covering all aspects of acquisition and loss of nationality, was not then adopted until the Irish Nationality and Citizenship Act 1935. The reason for delay was a disagreement between the London and Dublin Governments concerning the nature of the new citizenship.3 The British Government conceived of Irish Free State citizenship as a local citizenship, within a wider international status of British subject. The Irish state authorities preferred instead to consider Irish Free State citizenship as autonomous from British subject status, and to be capable of being relied upon internationally. Nationality legislation was eventually adopted in 1935, before a resolution of this fundamental question.

Irish nationality law and Northern Ireland

The treatment of Northern Ireland within Irish nationality law has historically been a controversial issue.4 Initially, special provision for Northern Ireland within Irish nationality law was primarily a consequence of the Irish state’s claim to the whole island of Ireland. Latterly—especially since the Belfast Agreement of 1998—special provision has reflected the Irish state’s wish to uphold the Irish identity of a minority in Northern Ireland.

In the early years of the Irish Free State, its authorities took the view that Article 3 citizenship applied to those who were domiciled and resident in Northern Ireland on 6 December 1922. That was based on the theory that, on that date, the “area of jurisdiction” of the Free State was the whole island of Ireland, as Northern Ireland did not exercise its right to opt-out of the new state until the following day. The United Kingdom Government would later acquiesce in this theory, when it neutralised its effects in British nationality law.5

The Irish Nationality and Citizenship Act 1956 went further, and provided that a person born in Northern Ireland would automatically acquire Irish citizenship if either of their parents was an Irish citizen. That was unlike the position for births elsewhere in the world, where registration was a precondition to the acquisition of Irish citizenship for the second and subsequent generations. For persons born in Northern Ireland, but who did not have an Irish citizen parent, there was an entitlement to Irish citizenship, which the individual could freely take up.

More recent developments began with the recognition by the Belfast Agreement of 1998 of “the birthright of all the people of Northern Ireland to identify themselves, and be accepted as Irish or British, or both, as they may so choose …”6 That statement legitimised the application of Irish nationality law to Northern Ireland, but also implied that it should be based upon individual choice, rather than arising automatically.

The Irish Nationality and Citizenship Act 2001 then introduced an apparent element of choice into Irish nationality law for persons born in Northern Ireland. All those born in either part of the island of Ireland continued to be entitled to Irish nationality by virtue of their place of birth. The acquisition of Irish citizenship was automatic for those who were entitled to Irish citizenship alone. In other cases—including persons born in Northern Ireland who became British citizens—Irish citizenship would be acquired only if positively asserted. The rules as regards citizenship by descent remained unaltered, however, so that a child born in Northern Ireland to an Irish citizen continued to acquire Irish citizenship automatically. That had the effect of removing much of the element of choice introduced into the provisions concerning the acquisition of citizenship through place of birth.

The scheme set out by the 2001 Act remained unaltered by the Irish Nationality and Citizenship Act 2004, which introduced a parental pre-condition to entitlement to Irish citizenship by birth. Children born on the island of Ireland since 1 January 2005 have been eligible for Irish citizenship by virtue of their place of birth only if, on the date of the birth, at least one parent is an Irish citizen (or entitled to become one), is a British citizen, is entitled to reside in a permanent basis in either Northern Ireland or the Republic, or has been lawfully resident on the island of Ireland for three of the previous four years.

British nationality law and Irish citizens

The possibility of continued access to forms of British nationality by Irish citizens arose as a result of the overhaul of British nationality law by the British Nationality Act 1948. Previously, British subject status had primarily been conferred on persons born in any British territory, including dominions such as the Irish state. Under the 1948 Act, British subject status was based instead upon possession of the nationality of a Commonwealth state. In recognition of the Irish state’s lack of enthusiasm for membership of the Commonwealth by this time, the 1948 Act excluded the Irish state from the list of states covered by the new principle.7 Instead, Irish citizens who had been British subjects prior to the coming into force of the 1948 Act were permitted to give notice that they wished to retain that status on the grounds of an association with the United Kingdom.8 Irish citizens were not however given a general entitlement to the separate citizenship of the United Kingdom and colonies (“CUKC”) introduced by the 1948 Act, which was the forerunner to today’s British citizenship.

1.2 Implications for Scotland

Were Scotland to become independent, parallels to a number of the questions posed in the case of Irish nationality might arise. The following are speculative examples of such possible questions.

A new nationality

In general terms, an independent Scotland would presumably be free to define both its original population of citizens and the rules on the acquisition and loss of nationality. That would not however preclude specific agreements on the content of its nationality law with the United Kingdom, either before or after independence.

In defining Scotland’s initial population of nationals, a key question would be whether prior possession of British citizenship, or eligibility for it, was to be a precondition. In both the 1922 Constitution and the 1935 Act, the Irish Free State defined its nationality law without reference to British subject status. While that approach would be one option for an independent Scotland, it would equally be possible for Scottish nationality to be limited to a sub-set of actual or potential British citizens thought to have a sufficient connection to Scotland.

Beyond that, it is to be expected that Scotland would legislate for the whole of nationality law more rapidly than the Irish Free State did. It is difficult to imagine a fundamental disagreement with the United Kingdom over the nature of Scottish nationality, or the content of its nationality law, which would preclude such legislation.

Scottish nationality law and the United Kingdom

There is no general parallel in the Scottish case to the position of Northern Ireland within Irish nationality law. Nevertheless, an independent Scotland might wish to favour the acquisition of Scottish nationality by some persons born in the post-separation United Kingdom, much as the Republic of Ireland does for births in Northern Ireland. That could potentially lead it to a more generous approach to acquisition of nationality by descent for those born in the United Kingdom than applied to the rest of the world.

British nationality law and Scotland

Scottish independence would also presumably lead to questions for the nationality law of the post-separation United Kingdom, especially if a proportion of the post-independence Scottish population continued to identify themselves primarily as British. One parallel here is with the provision for the retention of British subject status by Irish citizens after the 1948 Act. Potentially, the United Kingdom might wish some or all persons who were alive at independence to have the option of retaining British citizenship, in addition to acquiring the new Scottish nationality.

The question might also arise whether persons born in post-independence Scotland –in particular, those born to British citizen parents—should have the option of acquiring British citizenship on more favourable terms than persons born elsewhere in the world. There is again a parallel with the favoured position of Northern Ireland within Irish law on the acquisition of citizenship by descent.

2. Immigration Law and Policy

If Scotland were to become independent, questions would arise concerning its participation within what is termed the “common travel area”. That phrase is used in the Immigration Act 1971 to refer to two distinct sets of arrangements.9 The first concerns the relationship between the United Kingdom on the one hand, and the Channel Islands and Isle of Man on the other. Travel between these places is not subject to immigration control, and there is mutual recognition of immigration permissions granted by each jurisdiction in the others.

If Scotland were to become independent, the more relevant parallel would be with the second aspect of the “common travel area”: the relationship between the United Kingdom and the Republic of Ireland.10 The core elements of that relationship are elaborated here.

2.1 The British-Irish common travel area

Foundations

For most of the period since the establishment of the Irish Free State in 1922, there has not been immigration control on travel between the United Kingdom and the Irish state, in either direction. The main reason has been the presumed impracticability of immigration control at the Irish land border. Exceptionally, for a period between 1939–52, immigration control applied to journeys between Great Britain and both parts of the island of Ireland. In peacetime, however, the United Kingdom government has accepted free movement between the two states, and has sought to co-operate with the Irish state in immigration control.

It is known that agreements on the terms of their co-operation were entered into when the Irish Free State was founded in 1922, and again when immigration controls were lifted in 1952. The terms of those agreements, and of operational co-operation between the United Kingdom and the Irish state in immigration maters, have not generally been publicised by the two states. That has presumably reflected the political sensitivity of this co-operation, as it may be thought by some to call the two states’ sovereignty over immigration matters into question.

Recent years have seen a more open discussion of the arrangements between the two states. In 2008, the Labour Government launched a consultation concerning the e-borders project and the common travel area, which referred to the fact of “administrative agreements” between the two states in 1922 and 1952. Details of discussions between the two Governments concerning the common travel area were also given publicity through a “joint statement” in December 2011 by the Ministers involved.

Partial immigration control

The absence of immigration control between the United Kingdom and the Irish state has come under pressure since the mid-1990s. The initial impetus to change was the Republic of Ireland’s having experienced significant immigration for the first time in its history. In 1997, it introduced selective immigration control upon persons arriving from the United Kingdom, by air, land or sea. Since 2004, it has required persons arriving by air or sea, other than British and Irish citizens, to obtain permission to enter the state. In addition, there are selective checks upon immigration status on board bus and rail services from Northern Ireland.11

In 2008–09, the free movement principle was also questioned by the United Kingdom Government. It proposed the introduction of immigration control on air and sea arrivals from the Republic of Ireland, and of selective controls on persons and vehicles crossing the land border from the Republic of Ireland. While these proposals were ostensibly motivated by the e-borders project, the British authorities had presumably learned from developments in Irish border control. In order to permit these reforms, in the Borders Immigration and Citizenship Bill in 2009, the Government proposed to remove the provision in the Immigration Act 1971 which exempts arrivals from elsewhere in the “common travel area” from immigration control. That proposal was however defeated in the House of Lords, largely because of the belief that restricting free movement from the Republic of Ireland would lead to greater control on travel between Northern Ireland and Great Britain.

Mutual recognition?

British and Irish citizens, and other persons with rights under EU free movement law, have a right to enter either state from the other. In the case of the United Kingdom, persons with leave to enter or remain may rely upon that leave in order to enter the United Kingdom from the Republic of Ireland, while persons who are visa-exempt may enter the United Kingdom and stay for up to three months. In the case of the Republic of Ireland, persons who are not British, Irish or covered by EU free movement law, may enter the state without obtaining permission only if they possess a visa or are visa-exempt, and only if they enter by land from Northern Ireland.

What is lacking in the British–Irish relationship is mutual recognition of immigration permission. The effect is that persons with a visa or residence permit issued by one state may not rely upon that to travel to the other, even for a short period of time. The absence of mutual recognition causes particular problems on the island of Ireland, where it impedes cross-border travel by non-EU nationals who are lawfully present in Northern Ireland or the Republic of Ireland.

The two Governments have begun to consider forms of mutual recognition in recent years. The 2008 consultation document referred to the possibility of a common visa for the common travel area, and to the possible recognition of some Irish immigration decisions by the United Kingdom. In 2011–12, in order to promote tourism, the Irish Government began to recognise short-stay visas issued by the United Kingdom to nationals of 16 states. Finally, the December 2011 joint statement referred to the intention to explore “further co-operation in the area of mutual visa recognition, possibly up to a fully common short stay visit visa”.

Co-operation in immigration control

The common travel area arrangements have led to co-operation in immigration control between the two states in a variety of ways. For example:

Each state’s immigration law provides for the exclusion of persons considered undesirable in the other. This implies a practice of communication between the two states in relation to foreign nationals who are undesirable, or who have previously been excluded.

There has been operational co-operation in relation to immigration enforcement, including at ports in Northern Ireland (known as “Operation Gull”).

In parallel with e-borders, the Republic of Ireland is developing an “Irish Border Information System”. The December 2011 joint statement was explicit that the two governments have been “working together” on the two projects.

Ireland has generally followed the United Kingdom’s lead in introducing visa requirements for given nationalities. Building upon that, the December 2011 joint statement committed the two governments to “co-operating to the fullest extent possible to align the list of nationals who are visa required for travel to the two countries.”

2.2 Implications for Scottish independence

Were Scotland to become independent, it is to be assumed that both it and the post-separation United Kingdom would wish to have an open immigration border between them. Much as in the case of the Irish land border, the social, economic and organisational costs of imposing immigration control on the Scottish-English land border would argue against any other course of action. The close social ties between Northern Ireland and Scotland would be a further reason not to have immigration control on travel between the two states.

The British-Irish case shows that the question would then arise as to how much publicity to give to the details of any arrangements between the two states. The greater openness in recent years concerning the British-Irish common travel area suggests that the terms of any Scotland-United Kingdom arrangements would also come to be openly acknowledged.

The British-Irish case also shows that a number of questions might arise for the content of the arrangements between Scotland and the post-separation United Kingdom. It is not inconceivable that full or selective immigration control would apply to journeys by air and sea, or that selective control might be applied to land journeys. The question of mutual recognition of immigration permission would also arise, particularly to facilitate short-term travel for tourism, business and personal reasons. Finally, forms of operational co-operation in immigration control between Scotland and United Kingdom could be expected to emerge.

29 August 2012