Free movement challenges at the Scotland-England border after independence

August 17 2023, by Kirsty Hughes FRSE

The Scottish government’s new (July 2023) paper on ‘Citizenship in an independent Scotland’ is at pains to argue that there would be no passport checks between Scotland and England due to independence. It is obvious why it would want to make this case.

Any suggestion that, for instance, there would be the same sort of scenes on Scotland’s border with England as seen at Dover when passports are checked for travel to France, or even like the long lines at Eurostar post-Brexit, would not sway any undecided voters to back the independence cause.

But is this claim by the Scottish Government right? After all, there are some identity checks for British and Irish citizens as they move by air or sea between the islands of Britain and Ireland despite the existence of the Common Travel Area (CTA).

The argument that there will be no new checks relies on the fact that the land border on the island of Ireland, between Ireland and Northern Ireland, is open with no border infrastructure. But is it plausible to argue the Scotland-England land border will look the same, or might it end up with the same checks as already exist between Britain and Ireland for those travelling by air and sea?

Customs border

Since Brexit – and the hard EU-Britain border that has resulted since the start of 2021 from the EU-UK Trade and Cooperation Agreement – those arguing for independence in the EU have had to face up to the fact that there will be a customs and regulatory border for goods between an independent Scotland in the EU on the one hand, and, England and Wales on the other. There will also be barriers to the free movement of services and capital. Northern Ireland, operating under the Windsor Framework, will be different again (since it participates in free movement of goods in the EU’s single market but not for services or capital).

The Scottish Government has acknowledged that there will be a goods border in the case of independence, albeit playing down its severity. First Minister Humza Yousaf told a Brussels audience in June that there would be ‘light touch’ border controls – which would need to be agreed with the UK and with the EU. This is wishful thinking. There is nothing to suggest, looking at both France and Ireland and how their respective borders with Britain operate, that there is any option of a ‘light touch’ border on goods.

In any event, it is clear – and Humza Yousaf has acknowledged this – that there will be customs controls on goods at the border between an independent Scotland in the EU and England. This is already entirely different to the lack of a visible border on the island of Ireland.

No passport controls within the Common Travel Area?

The possibility of an independent Scotland becoming, or remaining, part of the UK-Ireland CTA, even once independent in the EU, has been frequently discussed. This would require the UK and Ireland to agree that an independent Scotland could join the CTA and EU agreement during accession talks so that Scotland would, like Ireland, not need to sign up to those parts of the Schengen acquis that lead to open borders between EU member states.

It seems quite likely that the EU would agree to such an opt-out, but this is certainly not guaranteed. It’s also possible that the UK Government, during a future Scottish independence vote, would insist that it would not agree to an independent Scotland staying in the CTA (which may not be plausible, but it could well be said and perhaps reneged on afterwards).

Even if there is such an agreement from the UK and EU, giving an independent Scotland in the EU the same opt-out from parts of Schengen as Ireland, does this guarantee no passport or migration checks at the new England-Scotland border?

In its July citizenship paper, the Scottish Government says: “As a result of the CTA arrangements, there would be no new passport or immigration checks at any of an independent Scotland’s land, sea or air border points with the UK and Ireland, and British, Irish and Scottish citizens would have the right to move freely within the CTA.” Yet there are, of course, checks at air and sea ports between the island of Britain and the island of Ireland (albeit these are not new).

As the UK Government explains on its website, for those UK and Irish citizens travelling from Ireland to England, Scotland or Wales:

“A Border Force officer may ask to see proof of your identity and nationality. You can use any documents that show your identity or nationality, for example:

a passport (current or expired)
proof that you’ve been given British citizenship – such as a UK citizenship certificate
a Gibraltar identity card (current or expired)
a copy of your passport or Gibraltar identity card that clearly shows your identity and nationality

You can use more than one document – for example, a driving licence with a citizenship certificate. If you’re using an expired passport or identity card, it must be recent enough that it’s clear that it’s yours.”

Different land borders

The Scottish Government, in its citizenship paper, is assuming that the UK Government, after Scottish independence, would not want to allow for the option of checking Scottish citizens’ identity at the England-Scotland land border. Yet, that land border is obviously not the same as the land border on the island of Ireland. It will have customs controls for goods. And there are not the pressures of the Good Friday Agreement and peace process to ensure no border infrastructure, as there have been in the case of the island of Ireland – driving so much of the Brexit talks, including, ultimately, the Windsor Framework.

There may well be passport controls, at the England-Scotland border, for those travellers not from the UK, Ireland or Scotland. And the UK Government may want to keep an option to ask for identity documents for UK, Irish and Scottish citizens. After all, there are full passport checks on the Eurostar ‘land’ border between France and England and the possibility of identity checks between Britain and Ireland. So, would a future UK Government after independence allow free movement with no checks? It’s possible. But this is not what currently happens at any of Britain’s borders (only at the border between Ireland and Northern Ireland). So, it’s also at least equally possible that there would be such checks.

The talks between the UK and EU over the Northern Ireland Protocol that led, eventually, to the Windsor Framework, show that flexibility and compromises can be found (as discussed by Katy Hayward in her recent blog). But an independent Scotland will not be part of the UK like Northern Ireland. It will be an independent state like Ireland.

It’s also worth noting that should there be a border poll leading to Irish unification; the EU has already indicated that, in that case, the entire territory of a united Ireland would be part of the EU. This is not the case for Scotland, which would follow – as acknowledged by the Scottish Government – a normal accession process. So lessons from the very different situation of Northern Ireland for a future independent Scotland are limited indeed.

In the end, independence means Scotland becoming a fully sovereign state. If it is then a state within the EU, and also part of the Common Travel Area, that does mean it could benefit economically and socially from having free movement of people both across the EU and across the UK, Ireland and Scotland.

But that does not take away the challenges of having an EU external border between Scotland and England. Nor does it guarantee that there will be no identity checks at the Scotland-England border. That debate on free movement of people and border checks is set to continue and will be very acute as and when there is an independence vote.