Building a New Scotland: citizenship in an independent Scotland

This paper sets out the Scottish Government’s proposals for citizenship in an independent Scotland.

Common Travel Area

There is a long-standing Common Travel Area (CTA) in these islands. This allows for free movement between the UK, Ireland, the Channel Islands and the Isle of Man for citizens of those territories.

Current membership of the CTA also gives reciprocal rights for British citizens in Ireland, and Irish citizens in the UK. This CTA predates either of the current participating states joining the European Union and is still in place after the UK's decision to leave the EU. It is an informal administrative agreement rather than a binding international treaty.[41]

The CTA has existed in some form since the establishment of the Irish Free State in 1922, other than a suspension during the second world war.[42] The principles of the CTA were reaffirmed in 2019 when the governments of the UK and Ireland signed a new Memorandum of Understanding following the UK referendum on leaving the EU[43]. This said that both governments have a "shared commitment to the protection of the CTA and associated reciprocal rights and privileges as a legitimate and fundamental public policy".[44]

The Scottish Government also shares a commitment to the protection of the CTA and the associated reciprocal rights for British, Irish and Scottish citizens after independence. Scotland would be part of this CTA as an independent country, just as it is now as part of the UK. This government would seek to agree this with the UK and Irish governments, in line with their commitment that "steps will be taken now and in the future by the Participants to ensure that these associated reciprocal rights and privileges continue to be appropriately reflected in their respective legal systems".[45] This government would guarantee that the rights of British and Irish citizens in Scotland would continue after independence as they do now.

The result would be that British and Irish citizens, both those living in Scotland at the point of independence and those wishing to travel here in future, would be able to move freely into Scotland. They would have the right to reside and work here; access health care, social protection including social housing, and education; and vote in local and national elections. They would not be required to become Scottish citizens in order to do so. As part of the CTA, Scottish citizens would be able to keep the same reciprocal rights in the UK and Ireland as they currently have.

Ireland is both part of the CTA and a member of the EU. On rejoining the EU, Scotland would continue to be part of the CTA as well as part of the European single market, enjoying the benefits of free movement of people.

The Westminster government and the EU agreed in the Northern Ireland Protocol[46] and reaffirmed in the Windsor Framework[47] that the UK and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories in the CTA, while fully respecting rights conferred by EU law. This requires the UK to ensure that the CTA, and the associated rights and privileges British and Irish citizens enjoy within it, can continue to apply without affecting the Irish Government's obligations under EU law for free movement.

Ireland also has its own approach to immigration[48] and rules on who can become a citizen.[49] There is no contradiction between being part of a CTA and having control of your own borders and laws on who can live and work in your country. Any Scottish Government would, of course, work closely with its UK and Irish counterparts on matters of border security, as good neighbours committed to protecting our citizens and residents and preventing abuse and criminality.

With that objective in mind, Scotland would engage with intergovernmental forums to facilitate dialogue and coordination on issues related to the movement of people within the CTA after independence. This Scottish Government would support strengthening and formalising intergovernmental relations on a tripartite basis where useful and mutually agreed. A common framework for movement of non-citizens within the CTA could be explored, for example, including extending mutual recognition of visitor visas where appropriate and visafree travel within the area for non-citizen residents of each participating country. Agreeing to work together on border security and facilitating short-term visits does not require harmonisation of long-term migration and citizenship rules, which remain for each country to decide according to the needs of their economies and communities.

Common Travel Area and EU accession

All EU member states share responsibility to monitor and control access to the EU by land, sea or air from non-EU countries.Part of protecting our place within the single market will mean, as all independent countries do, putting in place normal border arrangements as described in 'Building a New Scotland: A stronger economy with independence'.[50]

Free movement of people brings numerous benefits and opportunities – allowing citizens of the EU to live, work, establish businesses and study in any member state and giving them and their family members the same rights within the EU.

This government is committed to remaining an integral part of the broader social union that is the expression of the close economic, social and cultural ties that exist across the nations of the UK and Ireland. Independence does not threaten that social union. The EU has protected and enhanced the social and cultural links between Ireland and the rest of these islands. It was fundamental to the context for the peace process developed under the Belfast ("Good Friday") Agreement and it has consistently demonstrated its commitment to the Agreement throughout the Brexit process.

As part of the accession process, Scotland would sign up to and implement EU law while maintaining freedom of movement under the CTA within these islands. The CTA is recognised in EU treaties,[51] and because of this long-standing arrangement neither Ireland, nor the UK when it was a member, were required to implement in full the Schengen acquis – the elements of EU law regulating the removal of internal border controls within the Schengen area, police cooperation and border security at the EU external border.[52] In joining the EU, an independent Scotland could follow this precedent and adopt the Schengen acquis in so far as it concerns cooperation between police, customs and border control authorities, the Schengen Information System[53] and dealing better with illegal immigration.

We could seek agreement, on the same basis as Ireland, that because "the United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories ('the Common Travel Area')", the requirement to implement the Schengen acquis in full should also not apply to Scotland for "as long as they maintain such arrangements".[54] This would mean that, while it is part of the CTA, Scotland would not implement the technical requirements of the Schengen acquis at its land, sea and air frontiers with the UK and Ireland.

Several member states that joined the EU after the Schengen acquis became EU law are not part of the Schengen area and currently only participate in a limited way.[55] These member states may or may not ultimately join the Schengen area, depending on political and technical judgments. Croatia became the latest member state to join the Schengen area from 1 January 2023, ten years after accession to the EU. Scotland's geography, on the island of Great Britain, being only directly accessible to the EU through ferry or air links, also lends itself to a bespoke but precedented arrangement with our nearest neighbours, rather than implementing a system focused on the abolition of borders across the mainland continent of Europe.

As a result of the CTA arrangements, there would be no new passport or immigration checks at any of an independent Scotland's land, sea or air border points with the UK and Ireland, and British, Irish and Scottish citizens would have the right to move freely within the CTA.Scottish citizens would also be able to take full advantage of their rights as EU citizens, just as citizens of Ireland do.

The logic for there being special arrangements in EU law between Ireland and the UK would apply equally to an independent Scotland. The goal of the European project is to remove borders across the EU, not to introduce them where they do not currently exist. Commentators have overwhelmingly recognised that such an arrangement could be accepted by the EU for Scotland.[56], [57], [58] For example, Professor Katy Hayward, Queen's University Belfast, and Professor Nicola McEwen, University of Edinburgh, said in their 'UK in a Changing Europe' report 'An EU border across Britain: Scotland's borders after independence' that:

"given its unique geographic and historic circumstances, most specifically the existence of the Common Travel Area, most experts assume that Scotland would most likely seek and be granted an opt-out from the border control elements of the Schengen Agreement during membership negotiations with the European Union. This would… preserve free movement of people between Scotland and the rest of the UK. … [The CTA] already has legal recognition in the EU Treaties and was protected in the UK-EU Withdrawal Agreement."[59]



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