Thoughts on European Citizenship Part 3 – The Scottish Proposal

What would citizenship of an independent Scotland look like?
What would citizenship of an independent Scotland look like?

The purpose of this three part series has been to analyze how member countries of the European Union having no central standards for citizenship has lead to problems.  Part 1 looked at Malta’s attempt to raise capital by selling it citizenship.  Part 2 looked at Spain’s proposal to give citizenship to descendants of those expelled over 500 years ago.

This third post will look at the citizenship policy proposed by the Scottish National Party should the independence referendum on September 18th result in a Yes vote and compare it to the practices of other European Union countries.

As usual I would like to point out that I am a Librarian with a degree in political science, not a Lawyer and nothing in this post constitutes legal advice.

As we already know EU citizenship is supplemental to National Citizenship.  It is the fundamental right of every country to determine who is, and who is not, a citizen of that country.  The problem exposed by this post is that people of Scottish heritage are at a disadvantage to those with heritage in countries that make more liberal use of their Diasporas.

Currently Scotland is a constituent country of the United Kingdom.  Although some powers such as agriculture and education were devolved to the Scottish Parliament in 1999, authority for citizenship policy remains centralized at the Westminster Parliament in London.  Explaining all the caveats and asterisks associated with UK nationality law is too complicated to go into in much detail.  For the purposes of this post I am only going to analyze citizenship by decent, that is, the ability of one generation to transmit citizenship to the next generation.

Since being modernized in 1983 citizenship of the United Kingdom can only be transmitted to the first generation born abroad.  There are asterisks involved if the transmitting parent is male or female, or for if the parents were married, but this is far too complicated for our purposes.  As a constituent country of the United Kingdom Scotland is bound by the terms set by Westminster.

The United Kingdom’s first generation rule is in stark contrast to other countries in the European Union that have traditionally been population exporting countries.  Mary Robinson made what many people feel to be a successful organization of the worldwide Irish diaspora during her term as President of the that Country.  Something working in her favour is that the Republic of Ireland allows anyone with an Irish-born grandparent to register as a citizen of that country.  It is interesting to note that this can continue in perpetuity if each subsequent generation registered for citizenship prior to the birth of the next generation.  Given the European Union’s rules of freedom of movement this means that anyone with an Irish grandparent can live, work, and study in Scotland, while someone with a Scottish born grandparent cannot.  A couple of years ago this led to an interesting situation involving the tuition free education Scottish residents receive.

In England the Westminster Government has allowed the cost of University tuition to spiral.  The Scottish Government meanwhile has prioritized providing free education to UK Citizens resident in Scotland.  Due to EU rules, Scotland can impose fees on UK citizens from outside Scotland, but must treat citizens of other EU countries the same as Scottish residents.  This functionally meant that a citizen of Ireland could study for free at a Scottish University, but a citizen of the United Kingdom resident in England, Wales or Northern Ireland could not.

However, for political reasons the Republic of Ireland claims rights to the entire territory of the Island of Ireland, so anyone born in Northern Ireland also qualifies for a Republic of Ireland passport .  This means anyone born in Northern Ireland, who is by definition a citizen of the United Kingdom, could study for free in Scotland using their Irish passport, while those in England and Wales could not.  The Scottish government passed a law requiring Northern Irish students with Republic of Ireland passports to be resident for three months outside Northern Ireland before they could qualify for free tuition.  While there is not much evidence that this loophole was even being exploited, it serves as an interesting example of the problems with competing legal frameworks within a transnational organization.

Another example is Italy, which allows for people born abroad with an Italian-born Great-Grandfather to register for citizenship.  This has caveats specifically related to date of death, date of birth, the transmitting line being male or female, and requires the transmitting line to be unbroken meaning that the great-grandfather must have fathered the grandfather prior to naturalizing in the host country (this rule was abolished when Italy allowed dual citizenship in the 1990s but was not retroactive).

The newest EU country Croatia allows their citizenship to be obtained via a Croatian born grandparent.  Therefore my ex-girlfriend whose grandparents were born in what is now Croatia has the potential to register as a citizen of that country and in time exercise her mobility rights to live and work in Scotland.

It is difficult for me to remain detached from this subject.  As someone with a Scottish Grandparent it just seems to me that I should have as much right to contribute to Scotland as someone with Irish, Italian or Yugoslav heritage.  At the moment this is not the case because of the intersection between EU and UK law.

This leads me to the proposal by the Scottish National Party.  On September 18th 2014 people living in Scotland will vote in a referendum answering the question “Should Scotland be an Independent Country?”.  The White Paper “Scotland’s Future” released by the Scottish Government proposes that just like the Republic of Ireland an independent Scotland would allow anyone with a Scottish born Grandparent to register as a Scottish citizen.

When analyzing this it is useful to refer back to Viviane Reding’s assertion that EU countries should only provide citizenship in “a spirit of sincere cooperation with the other member states…[and] should only award citizenship to persons where there is a genuine link or genuine connection to the country in question”.  Does this proposal meet that criteria?  Under this proposal I would have the ability to instantly become a Scottish/EU citizen by completing some paperwork.  This is despite the fact that the closest I have ever been to Scotland was sitting on Hadrian’s Wall about 15 years ago.  Do I have a genuine link or genuine connection to Scotland?

If you asked me the question “Do You Feel Scottish” I would say yes.  I actually knew my Scottish born Grandmother, and have some vague memories of my Scottish-born Great-Grandmother.

Speaking for myself, if the referendum is successful and this law does eventually pass I probably would become a Scottish passport holder.  Would I uproot myself and move to Glasgow the next day?  Probably not.  But nor would I uproot myself tomorrow and move to Alberta.  As a Canadian who lives and works in Ontario I have the potential to bring my talents and energies to another province if that is where my life directed me.  This proposal would allow me to do the same in Scotland, and depending on how successor countries are treated by the European Union, potentially to the rest of Europe.

At the moment as the grandson of a Scottish-born person I could apply for a UK Ancestry Visa.  This would allow me to live and work in the UK for 5 years.  While I recognize it was forward thinking of the Westminster government to devise this scheme we are still left with people of British ancestry being at a disadvantage to those of non-British ancestry.  While I could apply for a visa and then apply for a job, I would be limited to working in the United Kingdom.  Someone with an Irish or Italian grand-parent could live and work anywhere in the EU, including Scotland.  While the very existence of the European Union opens up questions about diluting the meaning of national citizenship, it is clear that the current political establishment in Scotland sees the potential benefit of a more liberal citizenship policy putting their country on an equal footing as other EU countries.

There is no direct financial gain for Scotland to adopt a more liberal citizenship policy so I doubt this direction would create the backlash we witnessed in the Maltese proposal.  While I can make the argument that the Spanish proposal is taking citizenship by descent much too far, most countries are in agreement that a generation or two is a genuine link to the country.

At the moment this is entirely academic.  Opinion polling suggests that the referendum is probably going to be a victory for the “No” side.  Even if 50% of the voters vote yes, the soonest Scotland could actually become an independent country is 2016, and even then some speculate that this is not nearly enough time to negotiate the breakup of a country.  Furthermore the question on the referendum is about independence itself.  The “Scotland’s Future” whitepaper that sets out this proposal is a political platform that would only be adopted in the event that the Scottish National Party forms a government following separation.

Although there have been vague promises of more powers being devolved to Scotland if the Better Together side wins, I suspect citizenship powers would remain centralized in Westminster.  At the moment David Cameron seems less interested in debating the future of Scotland and more interested in a futile effort to ban internet pornography.

Interestingly, with all the debate surrounding the “IndyRef” next month I have seen very little debate on the subject of this citizenship policy.  What we can conclude from this is debatable.  It could be that the the big ticket issues like currency, oil revenue and the democratic deficit are of more pressing concern to the Scottish electorate.  Or it could be that this proposal is really not that controversial when Ireland has an almost identical law.

We shall see what happens on September 18th.

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