Building a New Scotland: migration to Scotland after independence

People and systems

This chapter sets out the current Scottish Government's proposals for how the policy, law and delivery elements of the border, immigration and citizenship system would operate.

Although Citizenship has been addressed in a separate paper in the Building a New Scotland series,^[131] there are important links with migration and the structures and systems required to operate both would have dependencies and interactions.

Legislation

This Scottish Government would seek to streamline and simplify immigration law for an independent Scotland.

The legislative framework underpinning UK immigration law is complex. The principal statute is the Immigration Act 1971, which permits the Home Secretary to set the Immigration Rules.^[132] Immigration law reform would be a priority for a newly independent Scottish Parliament, but it would not be straightforward: the UK Immigration Rules run to over 1,100 pages,^[133] and a review by the Law Commission to provide recommendations for simplification took over two years.^[134]

At the point of independence and in the short term, this Scottish Government would implement changes to the immigration system through the existing statutory framework Scotland would inherit. Much of the 'hostile environment' could be rolled back administratively or through alterations to the Immigration Rules, although some measures may require primary legislation to completely undo.

Immigration and nationality law is complex and there is significant scope for simplification. New nationality provisions would be put in place from day one of independence through the interim constitution. The Law Commission simplification work could help make the law underpinning immigration control more comprehensible and enable the Scottish Government's priorities to be delivered immediately after independence through the existing legal framework.

Public bodies

This government would propose to establish three core, new institutions to manage the operational platform for the border, immigration and citizenship system of an independent Scotland.

The Scottish Immigration and Border Agency (SIMBA) would combine end-to-end casework for discretionary migration routes, as well as overall responsibility for border security. This would include visa processing, border control at ports of entry, in-country enforcement and removals and decision-making on settlement for people on visa routes.

The Scottish Asylum and Refugee Resettlement Agency (SARRA) would be an independent agency separate from discretionary migration decision-makers and would receive and process applications for asylum and work with local partners on refugee resettlement programmes and integration.

The Scottish Passport and Citizenship Services Office (SPCSO), also discussed in the Building a New Scotland paper on Scottish citizenship,^[135] would issue passports to Scottish citizens; it would also receive and determine applications to naturalise or register as a Scottish citizen.

How SPCSO interacts with National Records of Scotland would be explored, as the latter is responsible for existing civil registration functions in Scotland such as recording births, deaths, marriages and civil partnerships, and how it might work with local registrars across Scotland to discharge its functions.

The way a borders, immigration and citizenship system is delivered would grow from the vison, values and principles for immigration policy set out in this prospectus, and focus on dignity, fairness, and respect at every stage of the migrant journey.

Advice, scrutiny and legal system

In addition, this government would look to replace UK advice, scrutiny and legal system bodies with Scotland-focused equivalents.

The Migration Advisory Committee is a non-statutory body that provides independent expert advice on migration to the Home Secretary,^[136] supported by a secretariat function within the Home Office. The Scottish Government established an Expert Advisory Group on Migration and Population in 2018.^[137] This is an ad-hoc advisory panel, but members are appointed and remunerated in line with Scottish public sector pay policy. Following independence, this government would seek to move the Expert Advisory Group onto a formal footing. It would continue to exist in shadow form to advise Ministers in developing policy ahead of independence day. Importantly, the multidisciplinary nature of the group would be retained.

The Independent Chief Inspector of Borders and Immigration provides impartial external scrutiny of the UK immigration system.^[138] The role is currently under-resourced and overly circumscribed: the findings of the Independent Chief Inspector are often not taken forward by the Westminster government, with publication of reports delayed or withheld by the Home Office.139 This Scottish Government would establish a new external immigration inspector function for Scotland and propose that the inspector should report their findings independently rather than through Ministers.

The Independent Monitoring Authority was established as part of the UK Withdrawal Agreement on leaving the EU to safeguard the rights of EU citizens in the UK.^[140] This Scottish Government would establish a body to fulfil this role in Scotland in the period between Scotland becoming independent and rejoining the EU – when the rights of those citizens would be guaranteed by EU law once again. Drawing on Wendy Williams' review of the Windrush scandal,^[141] the scope of this new body would be expanded to that of a Migrants' Commissioner, tasked with safeguarding the rights of all migrants in Scotland.

The provision of immigration advice to individuals is regulated in the UK by the Office of the Immigration Services Commissioner (OISC).^[142] It is not proposed to replicate the OISC after a successful independence vote. Instead, this government would consult on how and where its functions can be most effectively discharged to ensure immigration advice provided in Scotland is accurate and reliable. Options may include the Migrants Commissioner undertaking an equivalent role.

Responsibility for the immigration and asylum tribunals, which currently rests with HM Courts & Tribunals Service,^[143] would become a matter for the Scottish Courts & Tribunals Service on independence. Simplifying the immigration system, and empowering and training caseworkers to make better decisions, could reduce the administrative burden on tribunals and courts and lead to better outcomes for migrants. Prior to the pandemic, in 2017-18, three-quarters of all judicial reviews initiated at the Court of Session were related to immigration decisions. The number of judicial reviews disposed of by the Court of Session that year had more than doubled since 2008-09.^[144]

Enforcement, detention and removal

In line with the principle that migration should be controlled to deter and prevent abuse, fraud and criminal activity, including terrorism, human trafficking and other serious offences, an independent Scotland would require an effective, proportionate and humane approach to enforcement, including detention and removal.

Detention should be used sparingly and only when it is justifiable. It is a longstanding position of the Scottish Government that the immigration removal centre at Dungavel is not fit for purpose and should be closed, and the policy of long-term or indefinite immigration detention should end.^[145]

An important opportunity through independence would be to implement effective alternatives to detention and removal that provide a better balance between the rights of individuals and the duty to protect the public. This could also have an incidental positive financial consequence due to the high cost of the current system. This government would want to review how decisions to remove or detain people can be made more humane. This could involve an enhanced role for independent and impartial scrutiny, with appropriate structures that can deliver better and fairer decision-making at every stage.

We know that many people of all backgrounds in our communities have concerns about immigration enforcement activity directed by the Westminster government. We would work to build both understanding about how to approach immigration enforcement and trust in the decision-making system and the public servants carrying out the action. This should help reassure communities that any enforcement that could occur was necessary and proportionate and had public safety as its primary aim. Dignity, fairness and respect would be at the heart of Scotland's approach to enforcement, as it would be to every other part of the immigration system.