Eve Hepburn explores the SNP government’s approach to EU nationals in the aftermath of the vote for Brexit. 

One of the issues that appears to have infuriated First Minister Nicola Sturgeon the most in the post-EU referendum political turmoil is the insecurity it has created for EU nationals living in Scotland.

This was evident in her first speech after the referendum result, where Sturgeon sought to assure EU citizens that ‘you are welcome here, Scotland is your home and your contribution is valued.” In the days since then, Sturgeon has: hosted a summit of EU consul generals to reassure them that EU nationals are appreciated in Scotland; written letters to PM David Cameron and other Conservative leadership contenders for ‘immediate guarantees’ on the residency status and rights of EU nationals in Scotland[1]; and written a personal letter to the 173,000 EU nationals living in Scotland themselves. These actions have won her civic and political support, most notably from the Scottish Greens Co-Convenor Patrick Harvie who has demanded that EU nationals be granted indefinite leave to remain.

Why protect the right of EU nationals?

Sturgeon has several strong motivations for seeking to protect the rights of EU nationals. The most obvious is that she, her party, all of the other Scottish parties, the Scottish Parliament, and a majority of Scottish voters do not want Scotland to exit the EU. While the UK as a whole only mustered 48% support to remain in the EU during the referendum on 23 June, Scotland voted 62% in favour. On the basis of this democratic endorsement of Scottish support for the EU, Sturgeon has been given parliamentary approval to enter negotiations with Brussels to seek any solution that would allow Scotland to retain its EU membership, which might be through withholding Scottish legislative consent to endorse the referendum result, through Scotland assuming the mantle of continued UK representation in Europe, or through another referendum on independence in Scotlannd (see here for my analysis of Scotland’s options to stay in the EU).

But there are also more immigration-specific motivations for Sturgeon to pursue these demands, and I’ll break these down into four categories.

First, EU nationals (and indeed other third-country immigrants) are vital to Scotland’s economy and labour market (and indeed the UK economy). This fact has been acknowledged in numerous economic reports, whereby EU migrants in the UK have been estimated to contribute up to £2 billion per year to the UK economy. Scotland is very likely to struggle to fill gaps in the labour market – in both the skilled and unskilled sectors – without the contribution of EU nationals, especially given Scotland’s ageing population, comparatively low birth rate and demographic challenges.

Second, during the first referendum on independence in Scotland in 2014, the Yes side won substantial support from EU nationals, whereby several grassroots groups emerged to rally EU nationals around the banner of independence – such as Poles for an Independent Scotland, Italians for Yes, and EU Citizens for an Independent Scotland. These groups realised back in 2014 that an independent Scotland was more likely to stay in the EU and guarantee their residency in Scotland, than if Scotland remained part of the much more Eurosceptic UK. Sturgeon will want to return her support to these groups, especially if EU nationals maintain their voting rights in a second IndyRef.

Third, as well as the SNP’s more strategic goal of seeking to shore up EU national support for Scottish independence, the Scottish Government (both Labour/Lib Dem and SNP-led since the devolved parliament was created) has consistently exhibited principled support for migrants in Scotland. The early devolved governments led by Labour and the Lib Dems launched a ‘One Scotland, Many Cultures’ campaign that emphasised the important contributions that migrants and minority ethnic groups made to the cultural tapestry of Scotland. This emphasis on Scotland as an open, multicultural and progressive nation was continued with the Fresh Talent initiative in 2004, which sought to create opportunities for migrant graduates to stay and work in Scotland. And this narrative of Scotland as a tolerant and diverse nation has been continued by the SNP in power, which for instance developed a refugee integration strategy that was far more liberal than its UK counterpart.[2] Sturgeon’s desire to protect EU migrants is thus part of a long political tradition in Scotland of seeking to welcome foreigners, which is usually contrasted with the more restrictive UK approach.

A fourth reason why Sturgeon has focussed her energy on seeking guarantees for EU nationals to remain in Scotland has to do with the glaring gap between Scottish and UK approaches to immigration control and admissions. Since it has been in government, the SNP has vehemently criticised the UK’s immigration policy as ‘perverse’ and ‘damaging’ to the interests of Scotland. Former SNP leader Alex Salmond made the proposal of creating a Scottish points-based system that would increase net levels of immigration in order to raise Scotland’s demographic growth rate to the EU average. Furthermore, the SNP are committed to a more humane refugee and asylum policy that would treat newcomers as ‘New Scots’ rather than a drain on the state. A desire to moderately increase migration to Scotland, and to develop mechanisms to effectively integrate newcomers, have won the support of civic society, business groups and trades unions in Scotland.

How to protect the rights of EU nationals?

However, there are serious obstacles to achieving these goals.

Under the Scotland Act, immigration, asylum, nationalist and citizenship are all powers exclusively reserved to the UK Government. This means that Scotland has no meaningful influence over these matters. Furthermore, the UK’s relationship with Europe is another policy area reserved to Westminster, and therefore the Scottish government has no significant legal say over issues surrounding the free movement of people, which enables EU nationals to live in Scotland.

So what cards might Sturgeon have up here sleeve to protect EU nationals in Scotland? Her main strategy so far has been soft diplomacy: urging PM Cameron, Conservative leaders and EU consuls-general to take her views into consideration. But what if that doesn’t work? Theresa May – who is currently winning the race for Conservative leader – has already alluded to the possibility of deporting EU migrants living in Britain when the UK leaves the EU. She has refused to consider Sturgeon’s, and other senior political figures’, demands to safeguard the rights of EU nationals that have already made the UK their home, which has drawn ferocious criticism from across the board.

So what else might Sturgeon do? One option may be to unpick the political ramifications of the Sewel Convention (Scotland Act), whereby the UK Parliament “will not normally legislate in devolved areas without the consent of the Scottish Parliament”. While the residency of EU nationals in Scotland is not a devolved area, their contribution to Scotland’s economy (whereby Scotland’s control over economic development falls under the remit of the Scottish Parliament) is a devolved matter. And thus, deporting EU nationals from Scotland could be argued to have a significant detrimental effect on Scotland’s devolved arrangements (i.e. control over economic development).

Another option may be to consider the precedent of the Fresh Talent Initiative, which was the only time the Scottish government has exerted a modicum of control over immigration control, through an agreement with the UK Government in 2004-8. During this period, the Scottish Government was able to allow international graduates that had pursued studies at a Scottish university to live and work in Scotland for two years without the need for a work permit directly after graduation. While Fresh Talent was eventually terminated by the UK Government, there have been calls to reactivate the ‘Post Study Work Visa’ by the Scottish Government (following recommendations by the Smith Commission). It may not, therefore, be impossible to imagine the creation of a ‘European Talent Initiative’ that similarly allows EU nationals in Scotland to continue living and working there, let’s say for a period of five years, during which period EU nationals could apply for citizenship.

However, for such a European Talent Initiative policy to happen (whereby the UK Parliament might have to grant the Scottish Parliament competence in this area), there must be political goodwill on both sides of the border. This was the primary condition for success in 2004 when Jack McConnell negotiated Fresh Talent with Whitehall, when Labour ruled in both London and Edinburgh.

In the present political climate, however, there is clearly very little goodwill between the SNP government in Edinburgh and the Conservative government in London. Thus the devolution (however temporary) of any powers over immigration control to Scotland is highly unlikely. Which means that Sturgeon’s best chance of protecting EU nationals may ultimately be to win another referendum on independence and apply for EU membership. Only then would Sturgeon have full control over determining the boundaries of citizenship in Scotland.

Please note that this blog first appeared on the Centre on Constitutional Change blog on 6 July 2016.