How do I become a Scottish citizen?

We are regularly asked about acquisition of Scottish citizenship. Sometimes by a person, understandably unfamiliar with the UK’s constitutional intricacies, who conflates the terms British/Scottish. Sometimes by a person asking about Scottish ancestry. Sometimes by a British national resident in England, perturbed by recent political events, who is making plans to relocate. Sometimes by a Scottish born Brit, resident in England, who is seeking reassurance following a flurry of headlines suggesting a second referendum on Scottish independence is imminent.

The answer to all of these groups of people has, until recently, been straightforward: there is no such thing as Scottish citizenship; Scotland is part of the UK. Nationality law is reserved to Westminster, and all residents of Scotland are British citizens. We can advise on British citizenship eligibility, but on the concept of Scottish citizenship, there is nothing to be said.

However with renewed calls for a second independence referendum, it is no longer unrealistic to be thinking about Scottish, as opposed to British, citizenship. Earlier this month I examined the legal arguments for, and against, the Scottish Parliament passing legislation for a second independence referendum, without Westminster’s consent, on the UK Constitutional Law Blog. Here, I fast forward a bit, to look at what Scottish citizenship law might look like in the event of Scottish independence.

In the White Paper entitled Scotland’s Future, published by the Scottish Government in November 2013 in anticipation of the last independence referendum, the following was said:

“We plan that British citizens habitually resident in Scotland on independence will be considered Scottish citizens. This will include British citizens who hold dual citizenship with another country. Scottish born British citizens currently living outside of Scotland will also be considered Scottish citizens.”

In short, Scottish citizenship will be conferred automatically on all British citizens with a sufficient connection to Scotland. This will include those who are British through naturalisation (rather than through birth). So there is no reason for foreign nationals to delay applying for British citizenship on the basis that they would prefer to hold out for citizenship of an independent Scotland.

This Scottish connection can be established through:

1. Birth in Scotland;
2. Habitual residence in Scotland.

Proving birth in Scotland will be relatively easy; it can be evidenced by a birth certificate. Habitual residence, although a well-established legal concept, can be trickier. In the context of children, habitual residence has been defined as:

“…the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.” – Proceedings Brought by A (CJEU Case C-523/07)

Determining a person’s habitual residence requires a detailed examination of their overall circumstances.  There are likely to be borderline cases which give rise to difficulty such as: people who claim to have retained their Scottish habitual residence despite periods living elsewhere; and people who live near the border and have connections to both Scotland and England. Many of the factors noted above – such as nationality, conditions of stay, and linguistic knowledge – would have no application in the English/Scottish context.

Then there are those who miss out on automatic citizenship. Let’s assume a Scottish born British couple, currently resident in England for work, have a child. You could be forgiven for assuming that child would be automatically Scottish by descent on independence day. However this is not the current proposal. Only children born to Scottish parents after independence day will be automatically Scottish by decent.

Children born outside of Scotland before independence day will be required to register as Scottish citizens. This is likely to be a relatively straightforward process. British nationality law currently recognises a right to register in a variety of circumstances. However the UK Government currently charge a fee of £1,012 for registration, which puts citizenship out of reach for many. Hopefully the Scottish Government would not impose any such barrier to registration.  

After independence it is suggested there will be 6 ways to become a Scottish citizen. The following people will be entitled to automatic citizenship:

1. Those born in Scotland to at least one parent who has Scottish citizenship or indefinite leave to remain – this mirrors current British nationality law;

2. Those born outside Scotland to at least one parent who has Scottish citizenship – this appears to be modelled on the Irish system, allowing citizenship by descent where an overseas birth is registered in Scotland. This is less restrictive than current British nationality law, which allows citizenship by decent to pass down only one generation.

The following people will be able to apply for registration or naturalisation as citizens: 

3. British nationals outside Scotland with at least one parent who qualifies for Scottish citizenship – this is designed to alleviate the effect of not conferring citizenship upon such people automatically on independence day and prevent discrimination between people born before independence day and those born after (and therefore automatically Scottish by virtue of point 2 above);

4. Citizens of any country, who have a parent or grandparent who qualifies for Scottish citizenship – again this seems to be designed to prevent discrimination between people born before independence day and those born after;

5. Migrants in Scotland legally, subject to meeting good character, residency and any other requirements set out under Scottish immigration law – broadly speaking this mirrors current British nationality law, however the devil will be in the detail (which is not currently known). British nationality law currently requires a migrant to be “settled” (i.e. to have indefinite leave to remain) before they can apply for citizenship. It is unclear if this requirement is to be maintained;

6. Citizens of any country who have spent at least ten years living in Scotland at any time and have an ongoing connection with Scotland will also be able to apply for naturalisation – this is an entirely new category, with no current counterpart in British nationality law. Under current law a child born in the UK, who has lived here for the first 10 years of his or her life, can register as a British citizen. However this proposal appears to be more expansive as it does not require birth in Scotland.

All of this is highly speculative. Scotland may remain part of the UK, despite the Scottish Government’s best efforts. Independence may be achieved, but the 2013 proposals outlined above ditched in favour of a completely different system. However the 2013 White Paper provides an instructive insight in to the Government’s direction of travel. It provides answers for those wondering, in amongst all the political wrangling, how do I become a Scottish citizen?

Photo credit: https://commons.wikimedia.org/wiki/File:Scottish_Flag_-_detail.JPG

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