As part of the UK, Scotland has given control of its border into the hands of the larger country to the south. However many independence-supporting MPs Scotland elects, it will never be enough to give it a meaningful say over immigration at Westminster.
Under the devolution settlement, Holyrood does not have the right to be consulted – or even informed – on immigration rules.
Whatever the political colour of the next Parliament, immigration policy is something that will continue to be decided above Scotland’s head without any regard to what works for Scotland or what the Scottish people vote for at the ballot box.
England’s control over immigration is structurally built in. For this to work in the long term, Scots would have to trust that their interests were being taken into account. Increasingly, that is not the case.
This week, the UK Government passed the Rwanda (Safety) Bill, part of an expensive and foolhardy plan to export migrants to Rwanda, which the UNHCR has warned is illegal under international law. They did that without the support of the overwhelmingly majority of Scotland’s MPs.
Here we examine that and other ways the current situation does not work for Scotland.
Three ways Westminster’s immigration rules discriminate against Scotland
1. Raising the minimum income to bring a spouse or family into the country to almost £40,000
Recently, the UK Government decreed that from Spring 2024, the Partner and Family Visa minimum income requirement will increase from £18,600 to £29,000. That is part of a staged increase – next year it will increase to £38,700.
That ruling will affect many Scottish residents and businesses. The average wage in Scotland is £28,363 - compared to an average wage in London of £37,000. That means in a couple months time, most ordinary people in Scotland will have had the freedom to marry someone from another country removed by Westminster.
This also affects Scottish businesses who want to bring in skilled workers. Most can’t afford to pay the same rates as businesses in London and the south of England, where the costs of living are also higher. Without this ruling, a worker could weigh up an offer with a lower salary from a business in Dingwall, say, by including higher quality of life and lower housing costs. But this ruling means a higher salary-offer from a London business will include the ability to bring a spouse, whereas the Scottish one won’t.
This ruling discriminates against Scotland and it is supported by only a handful of Scotland’s democratic representatives. But Scotland was once again left with absolutely no say.
2. Post-Brexit, even more power is in the hands of the UK Government and its Border Force
The UK’s border guards recently forcibly removed an EU national who was trying to return to the country with paperwork showing she was awaiting a Home Office decision on her right to remain. The Border Force action ignored the fact “Maria” had papers showing her legal right to return to her home and job after a Christmas break.
The Guardian reported that this 34-year-old Spanish woman was detained overnight in Luton Airport on the 26th December and told she was “wasting her time” if she thought the Home Office documentation she had showing her right to live in the UK was valid before being flown back to Spain.
This kind of behaviour by the UK’s border guards is to do with the UK’s crackdown on immigration but it will have repercussions for Scots travelling to the EU. Scots going back and forward to Spain, for example, can expect border guards there to scrutinise their passports much more carefully to see if they have exceeded their 90 day entitlement. If for any reason the passport has not been stamped on leaving that can cause issues which can be difficult to resolve.
For those who need to be in the EU for longer – studying on a year abroad perhaps, staying with family, or trying to enjoy retirement, the visa process is already a time-consuming bureaucratic nightmare.
The Luton Airport incident was not an isolated case – the “Kafkaesque” visa process for school and student trips to the UK means that it is common for visas to be refused for a few students in any group, threatening the whole trip. That affects Scottish businesses that cater to language students and Scottish universities and colleges.
Scotland does not have the power to, for example, issue post study work visas which could help the country’s world-class universities to attract the brightest students from across the world. Scotland cannot issue visas for agricultural, care, or hospitality workers from the EU.
Brexit – which Scotland did not vote for – has been a disaster for the Scottish economy. Scotland benefited from having access to a pool of seasonal workers who would come over to work in the agriculture and hospitality industries each summer, returning home in the winter.
Scotland’s needs and wishes have not been taken into account by Westminster despite the repeated requests of an overwhelming majority of its voters and democratic representatives – that is a form of discrimination against Scotland.
3. The UK’s disdain for the rule of law undermines trust with Scotland
The UK Government is taking the country down a path of disdain for international law with its plans to deport migrants to Rwanda. The UNHCR warned this week that its plans flout the rules.
The UK is also being taken to the European Court of Human Rights over a law granting immunity to combatants in the Northern Ireland conflict.
Ireland’s Tánaiste (Deputy Prime Minister) Micheál Martin said Ireland had consistently argued the legislation is "not compatible" with Britain's obligations under the European Convention on Human Rights (ECHR). "The decision by the British government... (to) pursue legislation unilaterally, without effective engagement with the legitimate concerns that we, and many others, raised left us with few options," he said.
Northern Ireland’s Human Rights Commission has also issued a legal challenge to the Illegal Migration Act 2023. This Act made it illegal for a refugee fleeing persecution to seek asylum after arrival in the UK. Yet for most, including people who served alongside UK armed forces in Afghanistan, arriving without a valid visa is the only route to get to the UK, where they may have family ties. Labour has indicated it will not seek to repeal this.
The UK government is also taking steps to undermine the independence of the judiciary over Rwanda deportation flights. The most senior judge in England and Wales, Lady Chief Justice Sue Carr, spoke out about plans to recruit and train 150 judges to help implement Sunak’s Rwanda plan. Civil servants may be ordered to obey ministers if they decide to block a European Court of Human Rights order to stop Rwanda deportation flights.
The Guardian reported: “In a move that will enrage unions, government sources said officials had drawn up guidance to ensure Whitehall staff followed ministerial guidance if emergency orders known as rule 39 procedures were used to try to halt flights to Kigali.”
An intervention by a Strasbourg judge under the rule 39 procedure in June 2022 stopped a deportation flight taking off for Rwanda but the UK is also toying with reneging on the European Convention on Human Rights. Scotland’s devolution settlement is based on the Convention on Human Rights.
How long will Scotland continue to allow a larger country which disdains and distorts the rule of law to control its borders?
Scotland has different needs in terms of immigration from England
Scotland has a “demographic time bomb”. Over 65s outnumber under 15s and the average age is 42, two years older than England. In some parts of the Highlands and Islands, the average age is closer to 50.
Wages, especially in rural areas, are lower than London – yet Scotland is rich in resources. Many businesses in areas like renewable energy, technology, food production and farming are crying out for people with skills and talents to help them develop their potential.
Scotland’s world-class universities depend on attracting talent and they want students and staff to be able to bring family members with them. The country also wants young people who meet and marry their partners abroad to be able to return and start a family in Scotland without being prevented by egregious income requirements.
How would this work?
Some people argue that people given visas for Scotland might relocate to England. But Ireland controls immigration for itself while remaining part of the Common Travel Area with the UK. People granted visas to live and work in Ireland can freely travel to Northern Ireland or the rest of the UK but they may not have the right to work there – employers have a legal duty to check the immigration status of people they hire.
An independent Scotland could do better
Scotland is now in a forced Union with a larger country that repeatedly overrules its democratic voice to flout the rule of law.
Also this week, English MPs overruled Scotland’s MPs to cast out a Bill that sought to give Holyrood the power to call a referendum. That move may harden the resolve of Scots to seek an exit.
Independence means Scotland would be able to make decisions on immigration that provide greater benefit to its people, communities and economy, as well as respecting human rights and international law.