Academic Opinion: The common travel area and immigration policy in an independent Scotland

Posted by sb661 at Aug 11, 2014 04:10 PM |
Bernard Ryan, Professor of Migration Law at the University of Leicester considers a recurring question about Scotland's immigration policy

Please note: The views expressed below are the views of the academic and do not necessarily reflect those of the University of Leicester

In the Scottish referendum debate, a recurring question is whether an independent Scotland could maintain a distinct immigration policy while staying within the British and Irish common travel area. This matters because the possibility of such a separate migration policy, addressed to Scottish needs and preferences, has been part of the case for independence. That case is undermined if Scotland would face a choice between its own policy and freedom of travel with the post-independence United Kingdom.

Fears on this score appear exaggerated, however. To see why, it is necessary to distinguish immigration control relating to short-term stay - for tourism, business, etc - from that concerning longer-term immigration - for family reasons, employment, study, etc. An independent Scotland would probably face constraints in relation to the first, but probably not in relation to the second.

In relation to short-term stay, the key policy question is which states’ nationals are required to obtain a visa prior to arrival. Much of the purpose of visa requirements is to prevent irregular migration through overstaying. For that reason, states which share open borders tend to have similar lists of states whose nationals require a visa. That is the formal position among the states within the border-free Schengen zone. It is also roughly what happens in the current common travel area between the United Kingdom and Ireland. In that case, however, there are some differences, with nine states currently subject to a visa requirement for the United Kingdom only, while the seven states are covered by visas for Ireland alone.

The position as regards longer-term immigration policy is quite different, as there is no obvious incentive for states to co-operate, even with an open border. That is because the risks of irregular migration are much more limited. It will rarely make sense for a person with a lawful immigration status on one side of the border to cross to the other side, so as to be an irregular situation there.

This is borne out by EU directives on immigration from the rest of the world. These measures are unconnected to Schengen membership, and anyway lay down fairly minimal obligations for the member states that are covered. (The United Kingdom is not.) Equally, as between the United Kingdom and Ireland, there has never been a practice of co-ordination of long-term immigration policy.

It is true that, if Scotland became independent, common travel area arrangements might become more formal, with greater constraints for the participants in relation to short-term visas and travel. What is hard to imagine however is a choice for Scotland between free travel with the refashioned United Kingdom and a Scotland-oriented policy over longer-term stay.

Bernard Ryan is Professor of Migration Law at the University of Leicester. He has published on the common travel area and on the implications of Scottish independence for migration law. He does not have an opinion as to the desirability of Scottish independence.

The views expressed above are the views of the academic and do not necessarily reflect those of the University of Leicester

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