Building a New Scotland: citizenship in an independent Scotland

EU citizenship and citizens' rights

Regaining EU citizenship

In an independent Scotland, this government would seek to rejoin the EU as soon as possible, which would allow Scottish citizens to once again take up in full their rights as EU citizens and take advantage of free movement of people to travel, live, work and study across Europe.

British citizens were also EU citizens before Brexit, and the people of Scotland voted overwhelmingly for that to be maintained. EU citizenship was created in 1992, when the Treaty of Maastricht was adopted.^[60] This expanded the concept of free movement of workers, a fundamental pillar of the European single market from its inception in 1957, into a broader citizenship with associated rights including to live, work or study, be accompanied by family, and access public services and social protection. Scotland was part of this evolution and expansion of free movement and citizens' rights for nearly fifty years.

Even while respecting the result of the UK-wide referendum to leave the EU, it would have been possible for the UK to continue to benefit from free movement as part of the European single market, as countries such as Norway and Iceland do. The Westminster government instead pursued a different approach to delivering Brexit, and chose to leave the single market, thereby depriving the people of Scotland – who had voted to remain EU citizens – of their right to free movement.

Scottish citizens would recover their EU citizenship rights in full once Scotland rejoined the EU as an independent member state. EU membership and the full freedoms of the European single market would bring many benefits to Scotland, with free movement of people perhaps the most immediately tangible.

At present, although British citizens can travel to the EU to visit without requiring a visa, they can only stay in the Schengen area for a maximum of 90 days in a rolling 180-day period.^[61] When the EU pre-travel authorisation scheme (ETIAS) is introduced in 2024, non-EU nationals, including British citizens, will be required to pay a €7 fee and complete an online declaration before travelling to the Schengen zone.^[62] The new EU entry/exit system (EES) will also record biometric data – fingerprints and photographs – of third-country travellers on entry and exit.^[63] If a British citizen wants to reside, work or study in the EU, they must apply for a visa or permit from the national government of the country in which they intend to live.^[64]

As EU citizens, the citizens of Scotland would be able to travel freely within all EU member states, EEA member countries (Norway, Iceland and Liechtenstein) and Switzerland. Visits of up to 90 days could be for any purpose – to take up or look for work, to study, to see family and friends, or to travel as a tourist. The only requirement would be that travellers possessed a passport or national identity card.

Scottish citizens, as EU citizens, would be able to stay for longer than 90 days in another member state by exercising their rights specified in EU treaties, consolidated in the 2004 Citizenship Directive.^[65] This currently requires an eligible citizen to be in that country:

• in employment
• as a self-employed person
• seeking work
• studying
• living self-sufficiently or
• as a family member of an EU citizen exercising any of these rights

Family members are afforded free movement rights while accompanying a qualifying EU citizen even if they themselves are not EU citizens.^[66] Once Scotland rejoined the EU, for example, a Scottish citizen exercising their right to free movement could be accompanied by a partner who is a citizen of any other country. An EU citizen or their family member, who has exercised treaty rights to reside lawfully in another member state for at least five years, is automatically considered a "permanent resident".

EU citizens, who are travelling outside the EU, are also entitled to seek consular assistance from the foreign missions of other member states where there is no diplomatic presence of their home country.^[67]

EU citizens in Scotland

The interim constitution would ensure that the rights of EU citizens in the UK, as set out in the Withdrawal Agreement, would be maintained and enhanced in Scotland over the period following independence and before Scotland rejoined the EU.

It has been estimated that, from data collected between July 2020 and June 2021, there were 231,000 nationals of the 27 current EU member states living in Scotland.^[68] More than 300,000 applications to the EU Settlement Scheme (EUSS) have been made by EU citizens, EEA nationals and other eligible residents in Scotland.^[69] EUSS statistics include duplicate and repeat applications – for example, an applicant granted pre-settled status may apply for settled status when eligible. The latest quarterly statistics, which include data up to 31 March 2023, show that of the 325,380 concluded applications in Scotland, 182,400 (56%) were granted settled status, 120,540 (37%) were granted pre-settled status and 11,730 (4%) applications were refused; the remainder were withdrawn, void or invalid.

For many of these families, the period since the Brexit referendum and through the pandemic will have brought a range of challenges. The interim constitution would ensure that EU citizens' rights in Scotland are protected after independence.

At the point of independence, new immigration rules would provide settled status for all EU citizens who were resident in Scotland or elsewhere in the UK before 31 December 2020. The Scottish Government would work with the UK Government with the aim that all current holders of a status under the Westminster government's scheme in Scotland would automatically be registered.

The Scottish scheme for protecting EU citizens' rights would ensure that EU citizens and their families in Scotland acquired Scottish settled status automatically if they met the eligibility requirements. Registration would be voluntary and provide EU citizens with a means to prove that status. There would not be a deadline that would make people illegally resident and registration would continue to be possible for EU citizens with settled status who moved to Scotland from the UK after independence. Status holders who were registered would be able to obtain physical proof of their status, which would be free of charge.

The interim settled status scheme would not be required in Scotland after it rejoined the EU as an independent member state, at which point EU citizenship rights would apply once again.

The Scottish Government would seek agreement with the Westminster government that EU citizens with settled status in Scotland should be able to keep their UK EUSS status, allowing them to retain their protected right to live and work in the UK.

Scottish citizens in the EU

Many British citizens, who would be eligible for Scottish citizenship, currently live in the EU and have their rights protected under the Withdrawal Agreement. As there would be no barrier in Scottish law to holding multiple nationalities, Scottish citizens in this position would be entitled to maintain these rights as British citizens following independence. Once Scotland rejoined the EU, they would benefit once more from the full rights of EU citizenship.

Protecting rights after independence

This Scottish Government is committed to protecting the rights of migrants after independence. One of the recommendations of Wendy Williams's lessons learned review of the Windrush scandal was that the Westminster government "should introduce a Migrants' Commissioner responsible for speaking up for migrants and those affected by the system directly or indirectly."^[70] The Home Secretary confirmed earlier this year that this recommendation would not be implemented, despite previous Home Office commitments to do so.^[71]

In an independent Scotland, this Scottish Government would implement this recommendation from the Williams Review by establishing an independent Migrants' Commissioner. This would follow best practice,^[72] including from partner countries which have established migrants' commissioners or similar posts – for example, Germany established a commissioner within the federal government responsible for migrant rights and integration in 1978,^[73] and the current commissioner has lived experience as part of a family of refugees from Iraq.^[74]

In addition to its wider role, this new body in Scotland would be specifically asked to fulfil the role of the Independent Monitoring Authority^[75] in protecting the rights of EU citizens and their family members in Scotland in the period until Scotland becomes an EU member state. The commission would be independent of the Scottish Government.