Scottish independence referendum: Border skirmish in the offing?

Durham University’s Thom Brooks argues that if there is a Yes vote, Scotland’s liberal immigration policies could bring about changes across the whole of Britain

Gordon Terris/The Herald First Minister Alex Salmond at Scotland's Future Stakeholder Engagement event
First Minister Alex Salmond at Scotland's Future Stakeholder Engagement event

One question that keeps raising its head in the Scottish independence debate is about border controls and what would happen between Scotland and the rest of the UK at border towns like Gretna Green – a particularly pertinent subject in a holiday month where people are more prone to crossing borders.

The answer depends on who you ask. On the unionist side, shadow chancellor Ed Balls has been leading the charge. He claims that border controls are inevitable because immigration rules for both sides of the border would not be the same.

The nationalists don’t dispute that. They support a different immigration policy. Alex Salmond, Scotland’s first minister, has stated plans to increase net migration into Scotland by 10% to about 24,000 in total each year after independence.

This is aimed at expanding the workforce to finance the state pension.

Salmond has accused his critics of using immigration to scaremonger voters, pointing out that his proposed increase in net migration is only about 2,000 above the average figure for Scotland between 2001 and 2011.

But Salmond has argued that such differences should not preclude an independent Scotland becoming part of the common travel area between the UK, Ireland and the outlying British islands, where internal border controls are unnecessary.

Since the UK and the Republic of Ireland have made the travel area workable despite different immigration policies, he argues, there is an existing framework that would facilitate open travel across the UK-Scotland border.

So which side is right? To start with, it should be said that the common travel area is not a free travel area as such.

It is true that individuals who have lawfully entered Ireland or the UK do not normally require leave to cross into the other – although Irish-bound flights from the UK do pass through passport control, even though this often doesn’t happen in the other direction.

But the UK’s immigration rules are clear that some people are still subject to controls, such as those entering Ireland unlawfully; persons who have overstayed their leave; or individuals that would normally require a visa to travel to the UK.

While many people cross the UK-Irish border for work or family outings, temporary entry within the common travel area is not a permanent entitlement to indefinite movement for all, irrespective of their particular citizenship.

This may not have consequences in practice at the border, but it does mean that immigrants to Ireland can’t simply use that country’s different immigration policies to get a legal right to come into the UK.

This means that Scotland’s inclusion within the common travel area would not mandate the absence of any border controls – contrary to what the SNP have claimed in their independence white paper, “Scotland’s Future”.

As well as planning to increase immigration figures, Scotland is also planning a more relaxed approach to citizenship than the UK.

In the UK at present, any non-EU citizen wishing to obtain permanent residency must pass the “life in the United Kingdom” citizenship test.

Despite the fact that the test has serious problems, for which I have previously recommended solutions, all major parties remain committed to it, and we will likely see a new fourth version after the 2015 general election.

The SNP is on record claiming there will be no such citizenship test for residency or naturalisation in an independent Scotland.

Instead, the SNP’s white paper proposes a points-based immigration system that would also “lower the current financial maintenance thresholds and minimum salary levels for entry” to “open up greater opportunities” for new migrants to Scotland.

In a similar vein, another major issue for British immigration policy is English language proficiency requirements, since the government introduced new rules requiring applicants to provide additional evidence of satisfactory English.

No such rules for naturalisation, either for requiring proficiency in English or Scots Gaelic, are included in Scotland’s Future. This suggests they will be either scrapped or no decision has been made yet. In short, there are numerous things about Scotland’s immigration plans that are not yet clear. It is currently more aspirational slogans than a fleshed out system of rules.

Nonetheless, the direction of travel is obviously to be more liberal than current UK policy.

This runs the risk of Scotland becoming an easy target for migrants who gain entry to take up work but who always intended to cross the border shortly afterwards. If this started happening in practice, you can be sure it would not go down well with the rest of the UK, nor possibly Ireland, which has itself tightened up on immigration in recent years.

Would this see Scotland excluded from the common travel area? It seems highly unlikely, since it surely wouldn’t be in either side’s interests to impose border controls. The costs of setting up and maintaining such a system would be high and there would be consequences for economic activity, too.

What might be more likely is that Scotland’s application to the common travel area would trigger a review of the whole system.

This was on the table late in Tony Blair’s administration before it petered out. With immigration concerns running high, especially in England, it is not hard to see this prospect returning.

If so, the UK would be in a position where it could use the prospect of denying Scotland access to the common travel area as a means of checking Scottish immigration policy’s liberal tendencies.

The question would then be to what extent Edinburgh would risk calling London’s bluff. If we ever end up in that situation, the power politics will be fascinating.

:: Thom Brooks is a reader in law at Durham University.



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