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Craig, Sarah (2015)
Publisher: W. Green
Languages: English
Types: Article
Subjects:
The Scottish Government’s approach to immigration issues was portrayed\ud during the independence referendum debate as valuing the contribution\ud of migrants in a way which contrasted with the anti-migrant approach of the\ud UK Government.1 The question of how much divergence from the immigration\ud policies of the rest of the UK an independent Scotland might have\ud pursued did surface in the context of discussions about EU membership, but it\ud did not feature strongly. But when the Scottish Government’s approach is\ud looked at in detail, it reveals pragmatism, and a preparedness to assume\ud constraints on its pursuit of a separate approach to migration, in order to\ud achieve its aspirations to participate in the Common Travel Area and the\ud European Union. In these areas, the emphasis was on agreement, rather than\ud on a separate approach. Reflecting now on the post-referendum landscape, a\ud number of the divergences in migration policy put forward by the Scottish\ud Government can be seen as continuations of divergences with roots which\ud were traceable back to the early years of devolution. Some could be traced\ud back to initiatives which, since immigration is reserved to Westminster, grew\ud from co-operation between the Scottish Executive and the UK Government.\ud This article identifies some of the variations in practice, and contributions in\ud law and policy, which have featured in Scotland since devolution, and draws\ud attention to the connections between the divergences which emerged following\ud devolution, and those which formed part of independence proposals. Its aim is\ud to add to our collective understanding of the kinds of differences in\ud immigration and asylum law, and contributions to policy and practice which\ud have been pursued, and which could still be pursued. It concludes by\ud considering the impacts which UK immigration law continues to have in\ud Scotland, and how these might interact with proposals for constitutional\ud change.
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    • 2 Scottish Government, Scotland's Future: Your Guide to an Independent Scotland (Scottish Government, 2013), pp.267-271.
    • 3 Scottish Government, Scotland's Future: Your Guide to an Independent Scotland, p.270.
    • 4 Scottish Government, Scotland's Future: Your Guide to an Independent Scotland, p.426, question 165.
    • 5 See Migration Advisory Committee, Call for Evidence: Partial Review of the Shortage Occupation Lists for the UK and for Scotland (Migration Advisory Committee, 2014), https://www.gov.uk/ government/uploads/system/uploads/attachment data/file/359315/Call for evidence FINAL.pdf [Accessed April 20, 2015].
    • 6 Scottish Government, Scotland's Future: Your Guide to an Independent Scotland, p.270.
    • 7 Scottish Government, Scotland's Future: Your Guide to an Independent Scotland, pp.223-224.
    • 8 Bernard Ryan, ''At the Borders of Sovereignty: Nationality and Immigration Policy in an Independent Scotland'' (2014) 28(2) J.I.A.N.L. 146.
    • 9 HM Government, Scotland Analysis: Borders and Citizenship (The Stationery Office, 2014), Cm.8726, paras 2.21-2.24.
    • 10 Scottish Government, Scotland's Future: Your Guide to an Independent Scotland, p.224; N. Burrows ''Scotland and the EU'' in Gerry Hassan and James Mitchell (eds), After Independence (Edinburgh: Luath Press, 2013).
    • 11 The chance to opt in to the European Arrest Warrant, recently taken up by the current Home Secretary, arose from these negotiations: see Steve Peers, ''The UK opts back in to the European Arrest Warrant-and other EU criminal law'' (December 1, 2014), http:// eulawanalysis.blogspot.co.uk/2014/12/the-uk-opts-back-in-to-european-arrest.html [Accessed April 20, 2015].
    • 12 While the UK Government accepted that an independent Scotland would be able to negotiate membership of the CTA, they appeared to rule out diverging immigration policies; HM Government, Scotland Analysis Borders and Citizenship, para.2.23 ''The CTA, like all borderless travel arrangements, is only effective as long as members do not pursue policies that differ significantly from, or undermine, the policies of other members.''
    • 13 Burrows, ''Scotland and the EU'' in After Independence (2013).
    • 14 Scottish Government, Scotland's Future: Your Guide to an Independent Scotland, pp.267-271, e.g. criticism of UK Government ''Go Home'' campaign at p.267.
    • 15 Scotland Act 1998 s.30 and Sch.5 Head B6: ''Nationality; immigration, including asylum and the status and capacity of persons in the United Kingdom who are not British citizens; free movement of persons within the European Economic Area; issue of travel documents.''
    • 16 Immigration and Asylum Act 1999 Pt VI.
    • 17 See Emma Stewart, ''UK Dispersal Policy and Onward Migration: Mapping the Current State of Knowledge'' (2011) 25(1) Journal of Refugee Studies 25, 33.
    • 18 Immigration and Asylum Act 1999 Pt VI.
    • 19 Stewart, ''UK Dispersal Policy and Onward Migration: Mapping the Current State of Knowledge'' (2011) 25(1) Journal of Refugee Studies 25.
    • 20 Stewart, ''UK Dispersal Policy and Onward Migration: Mapping the Current State of Knowledge'' (2011) 25(1) Journal of Refugee Studies 25.
    • 21 Stewart, ''UK Dispersal Policy and Onward Migration: Mapping the Current State of Knowledge'' (2011) 25(1) Journal of Refugee Studies 25, 34.
    • 22 Minister for Social Justice, Scottish Refugee Integration Forum Action Plan (The Stationery Office, 2003).
    • 23 Immigration Act 1971 s.3.
    • 24 See discussion in Sarah Kyambi, Room for Manouevre? The options for addressing immigration-policy divergence between Holyrood and Westminster (Glasgow: Equality and Human Rights Commission Scotland, 2009).
    • 25 Immigration Act 1971 Sch.2
    • 26 Commissioner for Children and Young People, Memorandum by Scotland's Commissioner for Children and Young People to the House of Commons Select Committee on Home Affairs, Fifth Report 2005-06 (The Stationery Office, 2005), http://www.publications.parliament.uk/pa/cm200506/ cmselect/cmhaff/775/775we01.htm [Accessed May 11, 2015].
    • 27 Scottish Government, Cabinet Memo on Asylum Issues (Scottish Government, 2007), http:// www.scotland.gov.uk/News/News-Extras/asylum-issues [Accessed April 20, 2015].
    • 28 Children are still being detained under the UK's immigration powers, four years after undertakings were given to end the practice; see Jonathan Owen, ''Immigrant children still being detained, figures show'' (January 8, 2015), http://www.independent.co.uk/news/uk/politics/ immigrant-children-still-being-detained-figures-show-9966155.html [Accessed April 20, 2015].
    • 29 See https://www.opendemocracy.net/5050/kate-alexander/like-chicken-surrounded-by-dogs [Accessed April 20, 2015].
    • 30 Tribunals Courts and Enforcement Act 2007 s.13.
    • 31 There is also a final avenue of appeal to the UK's Supreme Court.
    • 32 The importance of consistency also led to the establishment of a system of country guidance cases, providing factual precedent on country of origin matters in asylum cases. For a full discussion of the issues see Robert Thomas, Administrative Justice and Asylum Appeals (Oxford: Hart, 2011), Ch.7, the country guidance concept.
    • 33 Re MF (Article 8: New rules: Nigeria) [2012] UKUT 393 (IAC); Re Izuazu (Article 8: New rules: Nigeria) [2013] UKUT 45 (IAC).
    • 34 Sarah Craig, Maria Fletcher and Kay Goodall, Challenging Asylum and Immigration Tribunal decisions in Scotland: an evaluation of Onward Appeals and Reconsiderations (Glasgow: University of Glasgow; University of Stirling, 2008), research into onward appeals and reconsideration in immigration cases between 2005 and 2007.
    • 35 Eba v Advocate General for Scotland [2011] UKSC 29; 2012 S.C. (U.K.S.C.) 1; 2011 S.L.T. 768; R. (on the application of Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 A.C. 663.
    • 36 N v Advocate General for Scotland [2013] CSIH 68; 2013 S.L.T. 1143.
    • 37 Eba v Advocate General for Scotland [2011] UKSC 29; 2012 S.C. (U.K.S.C.) 1; 2011 S.L.T. 768; N v Advocate General for Scotland [2014] UKSC 30; 2014 S.C. (U.K.S.C.) 183; 2014 S.L.T. 669.
    • 38 R. (on the application of Cart) v Upper Tribunal [2010] EWCA Civ 859; [2011] Q.B. 120 and RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277.
    • 39 The ''second appeals'' test for onward appeals from the Upper Tribunal to the Court of Appeal was introduced in England and Wales by the Tribunals Courts and Enforcement Act 2007 s.13(6). The same test was introduced in Scotland by Rule of the Court of Session 41.57, as amended by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Causes in the Inner House) 2011 (SSI 2011/303).
    • 40 Thirty per cent of asylum appeals to the First-tier tribunal (Immigration and Asylum Chamber) succeeded in April-June 2014: see Ministry of Justice, Tribunal statistics quarterly: April to June 2014 (The Stationery Office, 2014), https://www.gov.uk/government/statistics/tribunalstatistics-quarterly-april-to-june-2014 [Accessed April 20, 2015].
    • 41 For an account of this see S. Craig and M. Fletcher ''The Supervision of Immigration and Asylum Appeals in the UK-taking stock'' (2012) 24(1) I.J.R.L. 60.
    • 42 See Scottish Legal Aid Board, http://www.slab.org.uk/about-us/ [Accessed April 20, 2015].
    • 43 The restrictions on legal aid introduced in England and Wales by the Crime and Courts Act 2013 do not apply in Scotland, but representatives still report that they face difficulties getting paid, particularly where ''cross border'' issues arise (see evidence submitted to the Smith Commission below).
    • 44 See Nicola McEwen, ''The Problem of Interdependence in the New Devolution Agreement'' (Scottish Constitutional Futures Forum, 2014), http://www.scottishconstitutionalfutures.org/ OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/4803/Nicola-McEwenThe-Problem-of-Interdependence-in-the-New-Devolution-Agreement.aspx [Accessed April 20, 2015].
    • 45 See also Scottish Commissioner for Young People's evidence to Home Affairs Committee on the impacts of asylum policy on childrens' rights in Scotland, Commissioner for Children and Young People, Memorandum by Scotland's Commissioner for Children and Young People to the House of Commons Select Committee on Home Affairs, Fifth Report 2005-06.
    • 46 The Migration Observatory, Report: Immigration and Independence: Public Opinion on Immigration in Scotland in the context of the Referendum Debate (Oxford: The Migration Observatory at the University of Oxford, 2014).
    • 47 Robert E. Wright, Sub-National Immigration Policy: Can it Work in the UK? (Oxford: The Migration Observatory at the University of Oxford, 2013).
    • 48 The sanction is a fine of up to £3,000 (Immigration Act 2014 (c.22) Pt 3, Ch.1, ss.22 and 23). The provisions are not expected to be implemented ahead of the 2015 general election.
    • 49 Home Office, Immigration Bill: Factsheet: National Health Service (cll.33-34) (The Stationery Office, 2013), https://www.gov.uk/government/uploads/system/uploads/attachment data/ file/249315/Factsheet 08 - Health.pdf [Accessed April 20, 2015].
    • 50 See Scottish Refugee Council, Statement of Concern on the impact of Immigration Bill on Scotland's Communities (Glasgow: Scottish Refugee Council, 2014), http:// www.scottishrefugeecouncil.org.uk/policy and research/responding to policy/policy and research 2014 [Accessed May 11, 2015].
    • 51 Andrea Page and Alan Batey, ''Scotland's Other Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution'', 2002 P.L. 501.
    • 52 The Smith Commission, Report of the Smith Commission for further devolution of powers to the Scottish Parliament (Smith Commission, 2014), Heads of Agreement Pillar 1, para.22.
    • 53 Smith Commission, Report of the Smith Commission for further devolution of powers to the Scottish Parliament, Heads of Agreement Pillar 1, paras 28-29.
    • 54 Smith Commission, Report of the Smith Commission for further devolution of powers to the Scottish Parliament, foreword, p.6.
    • 55 Smith Commission, Report of the Smith Commission for further devolution of powers to the Scottish Parliament, Heads of Agreement Pillar 2, paras 63-64; the Special Immigration Appeals Commission (which deals with national security cases) and the Proscribed Organisations Appeals Commission are excepted from this proposal.
    • 56 Immigration Act 2014 s.19.
    • 57 Re MF (Article 8: New rules: Nigeria) [2012] UKUT 393 (IAC).
    • 58 For a fuller discussion see Immigration Law Practitioners Association, Information Sheet Immigration Act: Article 8 (London: Immigration Law Practitioners Association, 2014), http:// www.ilpa.org.uk [Accessed April 20, 2015].
    • 59 The proposal was to give the same level of protection as they have under the Scotland Act 1998, in the reserved areas as well as in the devolved: Scottish Government, Scotland's Future: Your Guide to an Independent Scotland, p.568, question 608.
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