Whither Scotland?

[UDS]

@Pjen

Cite please for any suggestion that the British Prime Minister and Parliament can advise the monarch on any matters other than British ones. This is so neo-colonial and typically British/and specifically English.

Yes, it is typically British, which makes me wonder why you are looking for a cite for it. Seriously, you want a cite? OK, try this; apart from the UK itself, every single Commonwealth realm that now exists, and therefore the separate crown of each Commonwealth realm, was created by or under an Act of the Westminster Parliament, and the British monarch of the day would never have become monarch of those realms if the Westminster Parliament had not so arranged it. There is no case in which the British monarch has accepted the crown of another commonwealth realm without the advice and assent of her UK advisers. And since her doing so affects the foreign relations of the UK (e.g. the UK cannot exchange ambassadors with another commonwealth realm) this is entirely proper and there is no reason for it to change.

@Pjen

Although the UK has not assented to the Convention of Nationality, the ECJ has seen fit to cite it as the prime reason for stopping another state (Austria) removing a citizen from citizenship and accepted that the convention should have effect in European Law. We have signed a Treaty of Accession to the EU which requires us to accept ECJ judgements as valid and superior to British Law.

But Austria is a party to the Convention on Nationality; the ECJ judgment explicitly points that out. The UK is not. Nothing in what the ECJ says suggests that they think the Convention is binding on states that aren’t party to it.

In any event, I don’t think Rottman says what you think it says. Rottman was an Austrian citizen by birth. He applied for, and was granted, naturalisation as a citizen of Germany, which under Austrian law meant that his Austrian citizenship was terminated. Subsequently it had emerged that he had lied in his application for German citizenship; when this emerged, his German naturalisation was revoked, leaving him apparently stateless. He brought proceedings in Germany seeking to annul the revocation of his German nationality, on the grounds that it would leave him stateless. (He did not seek the revival of his Austrian citizenship; the whole point of his naturalisation in Germany was to avoid extradition to Austria, where he was wanted for fraud, and being an Austrian citizen was not helpful to him in that regard.)

The German court referred two questions to the ECJ:

1. Is it permitted for Germany to withdraw Rottman’s citizenship if that will leave him stateless, or with no citizenship in any EU member state?

2. If Germany withdraws Rottman’s citizenship, is Austria bound to revive his original citizenship, so that he retains EU citizenship?

The ECJ answered the first question with “yes”. In the circumstances, Germany could revoke Rottman’s naturalisation.

But the ECJ declined to answer the second question. Rottman had not sought to have his Austrian citizenship revived, and the Austrian government had not taken any decision about that, and there was therefore no decision to challenge. “The Court cannot . . . rule on the question of whether a decision not yet adopted is contrary to European Union law”. If the question came before the Austrian authorities, they would have to make a decision about it “in light of the principles referred to this judgment” (basically, the principal of proportionality). The court does not say that, if the decision comes before the Austrian authorities, they have to restore Rottman’s Austrian citizenship.

@Pjen

All I have asserted is that at the point of independence, every substantive British Citizen retains their right to that citizenship whatever their residence so long as they do not voluntarily claim another citizenship.

And my point is that nothing in British nationality law or practice supports your claim in this regard. Time and again British citizens who have not voluntarily claimed another citizenship have had their British citizenship withdrawn. It’s what normally happens when a new Commonwealth realm, and associated new citizenship, comes into being; it’s what the framework of Commonwealth citizenship envisages. That doesn’t mean it has to happen if and when Scotland becomes independent; an exception for Scotland might be negotiated, and I think within the context of shared EU membership it probably will be. But it puts the kibosh completely on any claim that the Scots have a right for it not to happen.

[Pjen]

@Elendil_s_Heir

The Queen has remained head of state of many former British colonies because it has been politically expedient for the various Governments of the day that she do so. She is a symbol of unity, shared heritage and continuity for the Commonwealth and other states. But if a newly-independent country offered her its crown and the British PM didn’t want her to take it, she would not, as per the Rhodesia precedent noted above. The Rhodesian white minority government was at great pains to profess loyalty to the Queen in 1965-70, and insisted she was Queen of Rhodesia, but she, on advice of the British PM, did not accept or acknowledge that she was.

For more, see the Lacey book I mentioned earlier, or here: Rhodesia's Unilateral Declaration of Independence - Wikipedia

The British Government advising QEII as Queen of the UK is equal with the Government of every other realm advising their monarch. As with the current change to succession, it would be necessary to reach some agreement among many nations via the Commonwealth.

There is a definite whiff of colonialism here. The British Parliament is no longer supreme over the Empire, and does not control the Commonwealth (no longer the British Commonwealth). If say Mozambique asked QEII to be monarch, the Queen would seek advice from all her Ministers, not just from Westminster.

[Pjen]

@UDS

Yes, it is typically British, which makes me wonder why you are looking for a cite for it. Seriously, you want a cite? OK, try this; apart from the UK itself, every single Commonwealth realm that now exists, and therefore the separate crown of each Commonwealth realm, was created by or under an Act of the Westminster Parliament, and the British monarch of the day would never have become monarch of those realms if the Westminster Parliament had not so arranged it. There is no case in which the British monarch has accepted the crown of another commonwealth realm without the advice and assent of her UK advisers. And since her doing so affects the foreign relations of the UK (e.g. the UK cannot exchange ambassadors with another commonwealth realm) this is entirely proper and there is no reason for it to change.
But Austria is a party to the Convention on Nationality; the ECJ judgment explicitly points that out. The UK is not. Nothing in what the ECJ says suggests that they think the Convention is binding on states that aren’t party to it.

In any event, I don’t think Rottman says what you think it says. Rottman was an Austrian citizen by birth. He applied for, and was granted, naturalisation as a citizen of Germany, which under Austrian law meant that his Austrian citizenship was terminated. Subsequently it had emerged that he had lied in his application for German citizenship; when this emerged, his German naturalisation was revoked, leaving him apparently stateless. He brought proceedings in Germany seeking to annul the revocation of his German nationality, on the grounds that it would leave him stateless. (He did not seek the revival of his Austrian citizenship; the whole point of his naturalisation in Germany was to avoid extradition to Austria, where he was wanted for fraud, and being an Austrian citizen was not helpful to him in that regard.)

The German court referred two questions to the ECJ:

1. Is it permitted for Germany to withdraw Rottman’s citizenship if that will leave him stateless, or with no citizenship in any EU member state?

2. If Germany withdraws Rottman’s citizenship, is Austria bound to revive his original citizenship, so that he retains EU citizenship?

The ECJ answered the first question with “yes”. In the circumstances, Germany could revoke Rottman’s naturalisation.

But the ECJ declined to answer the second question. Rottman had not sought to have his Austrian citizenship revived, and the Austrian government had not taken any decision about that, and there was therefore no decision to challenge. “The Court cannot . . . rule on the question of whether a decision not yet adopted is contrary to European Union law”. If the question came before the Austrian authorities, they would have to make a decision about it “in light of the principles referred to this judgment” (basically, the principal of proportionality). The court does not say that, if the decision comes before the Austrian authorities, they have to restore Rottman’s Austrian citizenship.
And my point is that nothing in British nationality law or practice supports your claim in this regard. Time and again British citizens who have not voluntarily claimed another citizenship have had their British citizenship withdrawn. It’s what normally happens when a new Commonwealth realm, and associated new citizenship, comes into being; it’s what the framework of Commonwealth citizenship envisages. That doesn’t mean it has to happen if and when Scotland becomes independent; an exception for Scotland might be negotiated, and I think within the context of shared EU membership it probably will be. But it puts the kibosh completely on any claim that the Scots have a right for it not to happen.

How do you feel about the Universal Declaration on Human Rights, generally seen as secure basis for international law:

“Article 15 of the Universal Declaration of Human Rights (UDHR) says “[e]veryone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. Most articles of the UDHR are considered customary international human rights law. The right to citizenship/nationality is clearly stated.”

And back to my original list- the complications of deciding by a logical and just procedure who is and who is not a British citizen in the case of a massively mixed population (rather than people in far flung realms who lost their right to pass on their British citizenship over generations) make it virtually impossible for any result other than maintenance of British Citizenship by current holders (as was the case in the creation of Dominions- it was not the Passport holders at the time who lost their rights, it was their offspring!- which is what I am suggesting will be the case for Scotland.

[CarnalK]

So full of crap. “The rUK has to give them citizenship because the new Scotland is under no obligation to do so” pffffff

[Captain_Amazing]

@Pjen

And back to my original list- the complications of deciding by a logical and just procedure who is and who is not a British citizen in the case of a massively mixed population (rather than people in far flung realms who lost their right to pass on their British citizenship over generations) make it virtually impossible for any result other than maintenance of British Citizenship by current holders (as was the case in the creation of Dominions- it was not the Passport holders at the time who lost their rights, it was their offspring!- which is what I am suggesting will be the case for Scotland.

It’s not that complicated. No doubt independent Scotland will have a citizenship law. In fact, as the Yes campaign says:

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. . .

The Scottish Government will allow dual citizenship. It will be for the rest of the UK to decide whether it allows dual UK/Scottish citizenship - though we know that dual citizenship is allowed for those with any other nationality, and the UK Government has said that “it is likely that it would be possible for an individual to hold both British and Scottish citizenship.” (Indeed, the Law Society of Scotland has suggested that it might be contrary to EU law if Westminster attempted to deprive anyone of British citizenship merely because they had acquired citizenship of another member state ie Scotland).

So, the Law Society of Scotland aside, it would be easy enough for the British government to say,

As of date X, everyone who is 18 years of age or older and has Scottish citizenship will be considered to have renounced his or her British citizenship, unless, within one year of that date, he or she takes affirmative action to renounce his or her Scottish citizenship and affirm his or her British citizenship, or can show that some hardship exists preventing him or her from doing so.

Those individuals who are under 18 and possess Scottish citizenship as of date X will, on the date of their 19th birthday, be considered to forfeit their British citizenship, unless, after their 18th birthday and prior to their 19th birthday, they shall take affirmative action to renounce their Scottish citizenship and affirm their British citizenship, or can show that some hardship exists preventing them from doing so.

This law does not apply to:

1. Those who have received the Victoria Cross
2. Those who currently hold an Honour
3. Those who have been ruled incompetent to manage their own affairs due to physical or mental infirmity
4. Any individual that the the Crown chooses to exempt for the good of the United Kingdom or for humanitarian reasons

and you’re done. There’s a plan to decide by a logical and just procedure who is and who isn’t a British Citizen post independence. It’s a better deal than the people of Hong Kong got, at least.

[Steophan]

@Pjen

I cannot imagine a more combustible scenario than England trying to enforce a constitution on Scotland against its will. Do you want riots on the streets?

It won’t be “England” doing anything for starters, it will be the UK - which still includes Scotland, among others. And I didn’t suggest that the UK should impose a constitution on an independent Scotland, but that it should not allow an unacceptable one, and indeed that it has a duty to the Scots not to allow such.

Scotland will have spoken twice- once with a massive vote for the SNP in 2010 against all the predictions about the impossibility of single party rule under PR, and again in a referendum. How then does the UK claim to better represent the people of Scotland than their own vote.

If a majority of Scots vote for independence, fine. If a narrow majority of voters, which is a minority of eligible voters, not so much. That would be imposing independence on people who don’t want it.

And what would stop Scotland as a nation changing its constitution immediately to what the people wanted?

One would expect that the constitution would contain the mechanism needed to change it, so if it were to be stopped, it would be stopped by the constitution they choose on becoming independent.

There is so much colonialism here- overt and covert. What right do you think Russia had other than military prowess over the constitutions of its successor states. Is that what you are proposing.

Russia has the right, and indeed the responsibility, to look after the interests of Russians, just as the UK has the responsibility to look after its citizens.

Scotland isn’t simply going to declare independence if they vote for it, they are going to negotiate it with the UK (or, more accurately, as part of the UK).

@Pjen

That would be interesting. I would say that a Scottish Government, freely elected in 2010, desiring independence and a majority in a referendum would be quite sufficient to lead to a bloody exit if England tried to impose its will against the expressed wish of the Scottish people.

Good thing no-one has suggested such a thing.

Colonialism again!

No, a union. Scotland is hardly a colony, that it has representation in the UK government shows that. Expecting Scotland to show that it has a viable plan to be a successor state before granting independence is part of the UK’s duty to it’s Scottish citizens, not colonialism.

[Pjen]

@CarnalK

So full of crap. “The rUK has to give them citizenship because the new Scotland is under no obligation to do so” pffffff

It is not a question of “Giving Citizenship” it is the question of retaining citizenship.

No previous independence settlement saw people losing their right to British Residence until they started to be dusky skinned. Aussies, Kiwis and Canadians had free access to the UK but eventually their children lost the right to claim such residential rights.

As I have demonstrated above, separating sheep from goats would be impossible. What will happen is that normal citizenship rules will apply- children born outside the rUK will have partial rights unless they make new links with rUK, and their children will have none.

The idea that it is possible to easily review the passport and nationality status of five million British passport holders easily is unthinkable. I currently have a Passport expiring in 2022. I pay tax in England on my NHS pension. The UK government has no means of knowing whether I am permanently resident in Scotland or merely temporary. There is no rational and just method of withdrawing passports.

As I have said several times, this is not even said by Better Together and there is no mention of it anywhere except to deunk it. No actual claim has been made by any authrity that it will happen.

Example of a reasoned analysis:

HM Government’s Scotland Analysis document on Borders and Citizenship (January 2014) says that individuals who had, or were entitled to, British citizenship on the date of independence may have that right protected, although they also say that this right could be dependent on any residence requirements or proof of affinity to the continuing UK (paragraph 4.9). That document also states that the approach taken would be likely to be consistent with that taken to former citizens of the Irish Free State and the Republic of Ireland in the British Nationality Act 1981( paragraph 4.8), for whom dual citizenship is available under certain conditions. Bernard Ryan has suggested that British citizenship could be withdrawn from Scots born and continuously resident in Scotland who don’t have an appropriate legal connection to r-UK. He also indicates that the more conventional voluntary types of dual citizenship – such as those which apply to migrants- would be protected.[7]

A real risk?

While the category of Scottish citizens who risk losing their British citizenship is unknown, it could be limited to those without a connection to the rUK (e.g. by birth, descent or residence). They may also be able to elect to opt out of Scottish citizenship. Furthermore, CJEU rulings on withdrawal of citizenship could be invoked to protect their British citizenship rights. This could happen if Scotland’s membership of the EU took longer than the Scottish Government currently anticipates, and Scottish citizens thereby risked losing their EU citizenship rights if their British citizenship were withdrawn.As has been explained on this blog, (Barber, Tierney and Boyle above) the CJEU could be asked to protect the EU citizenship rights which Scots derive from their British citizenship. Looked at this way, the threat to British citizenship seems more imagined than real, at least in the medium term.

This begs the question – why raise the issue?

http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/4149/Sarah-Craig-What-Goes-with-Dual-Nationality-Valuing-Integration-and-Equality.aspx

[UDS]

@Pjen

How do you feel about the Universal Declaration on Human Rights, generally seen as secure basis for international law:

“Article 15 of the Universal Declaration of Human Rights (UDHR) says “[e]veryone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. Most articles of the UDHR are considered customary international human rights law. The right to citizenship/nationality is clearly stated.”

I’m fine with that. I’d just point out that, when a country becomes independent, the people of that country being granted citizenship of the newly-independent country in lieu of the citizenship of the larger state which they formerly had is not “arbitrary deprivation” of their nationality. Happens all the time. Has happened a great many times with respect to British citizenship in particular, and I’ve never seen any suggestion - until today - that it amounts to “arbitrary deprivation” in breach of the UDHR.

@Pjen

And back to my original list- the complications of deciding by a logical and just procedure who is and who is not a British citizen in the case of a massively mixed population (rather than people in far flung realms who lost their right to pass on their British citizenship over generations) make it virtually impossible for any result other than maintenance of British Citizenship by current holders (as was the case in the creation of Dominions- it was not the Passport holders at the time who lost their rights, it was their offspring!- which is what I am suggesting will be the case for Scotland.

1. You keep saying that it’s too complicated, but I’m just not seeing it. If continuing British citizenship is dependent on you, one of your parents or one of your grandparents having been born in rump UK, or having lived there for the five years preceding independence day, how is that complicated? (I’m not saying that exactly that would be rule; just that it’s possible to frame a practicable rule.)

2. Your position seems to require you to keep asserting as true things which have already been demonstrated to be false. You say that when dominions were created “it was not the Passport holders at the time who lost their rights, it was their offspring”, but I have already quoted the independence of Jamaica legislation which explicitly and unambiguously removed British citizenship from a large class of people who had it. And in that regard that legislation was typical of legislation effecting the creation of new commonwealth members states; removal of British citizenship from people who currently had it by virtue of their connection to the newly-independent territory was absolutely standard. If you find yourself relying on demonstrable fictions to support your position, isn’t it time to reconsider your position?

[Pjen]

@UDS

2. Your position seems to require you to keep asserting as true things which have already been demonstrated to be false. You say that when dominions were created “it was not the Passport holders at the time who lost their rights, it was their offspring”, but I have already quoted the independence of Jamaica legislation which explicitly and unambiguously removed British citizenship from a large class of people who had it

I did mention that there was legislation specifically aimed at dark skinned people. The original dominions all retained their citizenship.

[Tom_Tildrum]

@Pjen

The idea that it is possible to easily review the passport and nationality status of five million British passport holders easily is unthinkable.

Presumably Scotland is going to have to do that for all putative Scots residing in the rUK or elsewhere in the world, though, right?

@Pjen

That would be interesting. I would say that a Scottish Government, freely elected in 2010, desiring independence and a majority in a referendum would be quite sufficient to lead to a bloody exit if England tried to impose its will against the expressed wish of the Scottish people.

I have to say, it’s not immediately easy to reconcile your earlier concern for the rights of the “No” voters and the need for specific, individual acts of voluntary acceptance with the view that a 51% vote constitutes the collectively “expressed wish” of the Scottish people as a whole.

[Pjen]

@UDS

1. You keep saying that it’s too complicated, but I’m just not seeing it. If continuing British citizenship is dependent on you, one of your parents or one of your grandparents having been born in rump UK, or having lived there for the five years preceding independence day, how is that complicated? (I’m not saying that exactly that would be rule; just that it’s possible to frame a practicable rule.)

So we will have millions of tribunals where people will be required to produce birth certificates and evidence of residence through the decades. And what about naturalised Citizens.

It will be simpler, more just, and legal to allow all current British Citizens to keep their citizenship and follow natural rules about offspring.

Additionally the rUK would not be able to take any action that stopped a Scot being a European Citizen- they would be in a cleft stick as this would apply until Scotland became a full EU member.

And given that any Scot would almost certainly have the right to move to England if they wished, vote and work and register or declare British citizenship after five years as a British Subject legally settled in the rUK (as with Irish citizens born before 1949) it is increasingly meaningless.

No one in authority has suggested anything like what is being suggested here. I have briefly quoted the UK position above. The full text is:

Citizenship
If Scotland became an independent state, its government would decide who could become,
or would be required to become, a Scottish citizen. This would be a complex and difficult
decision with profound implications for individuals and their families; not only those alive at the
time of independence but also future generations born in Scotland, in other parts of the UK or
overseas. There are no clear precedents to guide an independent Scottish state in this area.
The current Scottish Government has proposed that all British citizens habitually resident in
Scotland will be considered Scottish citizens, and that Scottish-born British citizens currently
living outside of Scotland will also be considered Scottish citizens.20 This is a very wide model
of citizenship. It could lead to people living in Scotland, for example migrants from other parts
of the UK, assumed to be Scottish citizens, whether or not they would choose to be.
The UK has historically been tolerant of plural nationalities, and therefore it is likely that it
would be possible for an individual to hold both British and Scottish citizenship. However,
under current rules British citizens living outside the UK cannot pass their British nationality on
more than one generation. So the children of British citizens living in an independent Scottish
state would be British citizens, but their children and subsequent generations would not be.
The government of the continuing UK would also need to consider whether all British citizens
living in Scotland could retain their British citizenship upon independence. This cannot be
guaranteed and could be dependent on any residency requirements or proof of affinity to the
continuing UK. It is not possible to predict now what the decision of a future government of
the continuing UK might be in this area."

If you look at how it is worded, the RED portion seems to be what is proposed and the BLUE portion is about the doubtful future.

Of course anything is possible with future governments, but there are various limits on rUK decisions- international agreements, treaties etc. Additionally if the rUK was seen to be removing citizenship from people for spite, Scotland might take direct retaliatory action or court action dragged out over years.

[Pjen]

@Tom_Tildrum

Presumably Scotland is going to have to do that for all putative Scots residing in the rUK or elsewhere in the world, though, right?

Only for those applying for Scottish Citizenship to be confirmed. Many will not bother. It is different from having to review 5 million people at the same time while they live in a nominally separate country.

Getting a Scottish Passport is inclusive and simple.

Trying to deny a British Passport is exclusive and complicated.

And Scottish rules take no notice of residence except on a single date, whereas the rules people here are proposing might require five years previous residence in the rUK to be proved to maintain their status.

[Pjen]

@Tom_Tildrum

I have to say, it’s not immediately easy to reconcile your earlier concern for the rights of the “No” voters and the need for specific, individual acts of voluntary acceptance with the view that a 51% vote constitutes the collectively “expressed wish” of the Scottish people as a whole.

It is apples and oranges. One is a decision necessarily made by an electorate, the other is a question of the stability of civil status for individuals. No-one should be forced to have a nationality (maybe Unionist Scots would want to insist on retaining their personal status and never want a Scottish Passport. That is different from 'majority rules. If it is 51% it will be an angry settlement, but so it will be if it is 49%. At least with 49% the option remains for a second go in the next decade.

[UDS]

Hi Pjen

@Pjen

No previous independence settlement saw people losing their right to British Residence until they started to be dusky skinned. Aussies, Kiwis and Canadians had free access to the UK but eventually their children lost the right to claim such residential rights.

You’re confusing two things here, and at the same time pointing to the elephant in the room; racism.

The two things you are confusing are (a) British citizenship and (b) rights of abode. They are quite separate things.

Thumbnail historical sketch, only very slightly oversimplified:

1. Until after the Second World War, there was just a single status (“British subject”) for everyone born or naturalised in all British possessions throughout the world. And all British subjects had a right of abode in the UK (though not necessarily in other parts of the Commonwealth).

2. After the war, British subject status was subdivided into a series of distinct citizenships - Australian, Canadian, UK and Colonies, New Zealand, etc. All of these distinct citizenships were bracketed together as “British subjects”, so you could be a British Subject and a Canadian Citizen, say, or a British Subject and a CUKC. The umbrella term “Commonwealth citizen” was also used; it was interchangeable with the term “British subject”. All British subjects continued to have a right of abode in the UK, even those who were not, and never had been, CUKCs.

3. Over time, the number of Commonwealth citizenships multiplied, as India, Pakistan, Ghana, etc became independent and enacted their own citizenship laws. In general, as a territory became sovereign and enacted its own citizenship law, CUKCs whose connection was to that territory lost CUKC status and, ideally, acquired instead the status of citizen of the territory concerned.

4. But it didn’t always work this way. Sometimes the new citizenship law would not embrace all British subjects connected with the territory. This was the case, e.g., in India. The deal for those who “fell through the gaps” was that they lost CUKC status, did not become, e.g., Indian citizens, and retained British Subject status; they became “British subjects without citizenship”.

5. Loss of CUKC status during this period wasn’t the huge issue you might think. All British subjects (whether Commonwealth citizens or British subjects without citizenship) they retained a right of abode in the UK, so the loss of CUKC status didn’t entail exclusion from the UK. (This is why it’s important to distinguish between citizenship status, on the one hand, and right of abode on the other.)

6. In the early 1960s, the UK introduced immigration legislation in which British subject status, and indeed CUKC status, no longer carried the automatic right of abode in the UK. Further tests were applied to determined which British subjects, and which CUKCs, were entitled to abide in the UK. And as time went on those tests became more and more stringent. The tests applied weren’t explicitly racial, but of course in their operation they had a distinctly racially skewed effect. And note, this didn’t just apply to people’s after-born children; lots of people who had a right of abode in the UK lost it when these laws took effect, or when as immigration rules were introduced from time to time. (Anyone who had actually exercised that right of abode, and was settled in the UK when the rules changed, was always grandfathered in, though.)

7. It remained the case that, throughout the 1960s and 1970s, when CUKCs lost that status on independence and instead became citizens of, e.g., Jamaica, this didn’t matter as much as you might expect. Now, in losing CUKC status, people still weren’t losing the automatic right of abode in the UK - not because they were retaining it, but because they had already lost it some time ago.

8. Matters were rejigged again in 1981, when there were two changes that we need to note. First, CUKC status was subdivided into about six new categories - British citizen, British overseas citizen, British dependent territories citizen, etc. CUKC status itself disappeared. “British citizen” is the category that applies to most people in the UK today. British citizenship does carry a right of abode in the UK; the other categories mostly do not. Secondly, the concept of “British subject” was fundamentally changed. Instead of being an umbrella term which embraced everybody who had any kind of commonwealth citizenship or none, it became a residual category for people who had no commonwealth citizenship but who for historical reasons had qualified for British subject status. Nobody knows exactly how many British subjects there are today - it has never been thought necessary to register or count them - but it’s a small category, and it’s thought that the great majority of them are Irish citizens (since Irish citizenship is not a commonwealth citizenship). British subject status is not hereditary and cannot now be acquired. It does not carry a right of abode in the UK. Unless the law changes again the status will disappear entirely in a generation.

The upshot of all this, though, is that since the early 1960s loss of British status (by whatever name called) has not been connected with loss or retention of the right of abode in the UK.

And, for entirely different reasons, that’s still going to be the case for Scotland. As EU nationals, the Scots will undoubtedly have rights of abode in the UK. As far as wider immigration issues go, the obvious course is to extend the Ireland/UK Common Travel Area to include Scotland. The Scots are mostly white, so these measures will not meet popular resistance in rump UK. Within these parameters, loss of British citizen status may have an emotional significance for some Scots (one way or the other!) but little practical significance.

[Pjen]

@UDS

Hi Pjen
You’re confusing two things here, and at the same time pointing to the elephant in the room; racism.

The two things you are confusing are (a) British citizenship and (b) rights of abode. They are quite separate things.

Thumbnail historical sketch, only very slightly oversimplified:

1. Until after the Second World War, there was just a single status (“British subject”) for everyone born or naturalised in all British possessions throughout the world. And all British subjects had a right of abode in the UK (though not necessarily in other parts of the Commonwealth).

2. After the war, British subject status was subdivided into a series of distinct citizenships - Australian, Canadian, UK and Colonies, New Zealand, etc. All of these distinct citizenships were bracketed together as “British subjects”, so you could be a British Subject and a Canadian Citizen, say, or a British Subject and a CUKC. The umbrella term “Commonwealth citizen” was also used; it was interchangeable with the term “British subject”. All British subjects continued to have a right of abode in the UK, even those who were not, and never had been, CUKCs.

3. Over time, the number of Commonwealth citizenships multiplied, as India, Pakistan, Ghana, etc became independent and enacted their own citizenship laws. In general, as a territory became sovereign and enacted its own citizenship law, CUKCs whose connection was to that territory lost CUKC status and, ideally, acquired instead the status of citizen of the territory concerned.

4. But it didn’t always work this way. Sometimes the new citizenship law would not embrace all British subjects connected with the territory. This was the case, e.g., in India. The deal for those who “fell through the gaps” was that they lost CUKC status, did not become, e.g., Indian citizens, and retained British Subject status; they became “British subjects without citizenship”.

5. Loss of CUKC status during this period wasn’t the huge issue you might think. All British subjects (whether Commonwealth citizens or British subjects without citizenship) they retained a right of abode in the UK, so the loss of CUKC status didn’t entail exclusion from the UK. (This is why it’s important to distinguish between citizenship status, on the one hand, and right of abode on the other.)

6. In the early 1960s, the UK introduced immigration legislation in which British subject status, and indeed CUKC status, no longer carried the automatic right of abode in the UK. Further tests were applied to determined which British subjects, and which CUKCs, were entitled to abide in the UK. And as time went on those tests became more and more stringent. The tests applied weren’t explicitly racial, but of course in their operation they had a distinctly racially skewed effect. And note, this didn’t just apply to people’s after-born children; lots of people who had a right of abode in the UK lost it when these laws took effect, or when as immigration rules were introduced from time to time. (Anyone who had actually exercised that right of abode, and was settled in the UK when the rules changed, was always grandfathered in, though.)

7. It remained the case that, throughout the 1960s and 1970s, when CUKCs lost that status on independence and instead became citizens of, e.g., Jamaica, this didn’t matter as much as you might expect. Now, in losing CUKC status, people still weren’t losing the automatic right of abode in the UK - not because they were retaining it, but because they had already lost it some time ago.

8. Matters were rejigged again in 1981, when there were two changes that we need to note. First, CUKC status was subdivided into about six new categories - British citizen, British overseas citizen, British dependent territories citizen, etc. CUKC status itself disappeared. “British citizen” is the category that applies to most people in the UK today. British citizenship does carry a right of abode in the UK; the other categories mostly do not. Secondly, the concept of “British subject” was fundamentally changed. Instead of being an umbrella term which embraced everybody who had any kind of commonwealth citizenship or none, it became a residual category for people who had no commonwealth citizenship but who for historical reasons had qualified for British subject status. Nobody knows exactly how many British subjects there are today - it has never been thought necessary to register or count them - but it’s a small category, and it’s thought that the great majority of them are Irish citizens (since Irish citizenship is not a commonwealth citizenship). British subject status is not hereditary and cannot now be acquired. It does not carry a right of abode in the UK. Unless the law changes again the status will disappear entirely in a generation.

The upshot of all this, though, is that since the early 1960s loss of British status (by whatever name called) has not been connected with loss or retention of the right of abode in the UK.

And, for entirely different reasons, that’s still going to be the case for Scotland. As EU nationals, the Scots will undoubtedly have rights of abode in the UK. As far as wider immigration issues go, the obvious course is to extend the Ireland/UK Common Travel Area to include Scotland. The Scots are mostly white, so these measures will not meet popular resistance in rump UK. Within these parameters, loss of British citizen status may have an emotional significance for some Scots (one way or the other!) but little practical significance.

Which still misses my point that The British Government is not planning to remove British Citizenship from Scots and would be opening Pandora’s box if they did.

Not even Better Together support this wild idea.

The only place I can find it getting any traction is on this thread. No one else believes it.

[UDS]

@Pjen

Which still misses my point that The British Government is not planning to remove British Citizenship from Scots . . .

Have they said that?

[Steophan]

The point is not whether they are planning to, the point is that post-independence they could do so, and do so easily. And, obviously, at some point after independence, there will be Scots that are not British citizens, the only debate is when.

[Pjen]

@UDS

Have they said that?

Yes. In the post above

Citizenship
If Scotland became an independent state, its government would decide who could become,
or would be required to become, a Scottish citizen. This would be a complex and difficult
decision with profound implications for individuals and their families; not only those alive at the
time of independence but also future generations born in Scotland, in other parts of the UK or
overseas. There are no clear precedents to guide an independent Scottish state in this area.
The current Scottish Government has proposed that all British citizens habitually resident in
Scotland will be considered Scottish citizens, and that Scottish-born British citizens currently
living outside of Scotland will also be considered Scottish citizens.20 This is a very wide model
of citizenship. It could lead to people living in Scotland, for example migrants from other parts
of the UK, assumed to be Scottish citizens, whether or not they would choose to be.
The UK has historically been tolerant of plural nationalities, and therefore it is likely that it
would be possible for an individual to hold both British and Scottish citizenship. However,
under current rules British citizens living outside the UK cannot pass their British nationality on
more than one generation. So the children of British citizens living in an independent Scottish
state would be British citizens, but their children and subsequent generations would not be.
The government of the continuing UK would also need to consider whether all British citizens
living in Scotland could retain their British citizenship upon independence. This cannot be
guaranteed and could be dependent on any residency requirements or proof of affinity to the
continuing UK. It is not possible to predict now what the decision of a future government of
the continuing UK might be in this area."

[Pjen]

@Steophan

The point is not whether they are planning to, the point is that post-independence they could do so, and do so easily. And, obviously, at some point after independence, there will be Scots that are not British citizens, the only debate is when.

The ‘could’ do many things- refuse to leave Faslane, set up border controls, refuse use of the pound, oppose EU membership, and so on.

The reality is that it will not happen. So long as the transition is not frustrated it will be settled by rational and pragmatic discussion. There is nothing for anyone to ain from removing citizenship from current passport holders.

As noted above the Government is not planning this, though it notes that they cannot bind future governments.

[Pjen]

@Steophan

The point is not whether they are planning to, the point is that post-independence they could do so, and do so easily. And, obviously, at some point after independence, there will be Scots that are not British citizens, the only debate is when.

Not easily as pointed out above- convoluted, legalistic, antagonistic and time and money consuming.