Commentary on Provisions Part 1: Candidacy rights etc. of foreign nationals
8.Part 1 contains provision which would give foreign nationals, with any form of leave to remain in the United Kingdom, the right to stand as candidates at Scottish local government elections and Scottish Parliament elections.
9.The Scotland Act 1998 (the “1998 Act”) sets out who may be a member of the Scottish Parliament. Section 5 provides for candidacy but does not set out the criteria. Instead, that is left to sections 15 and 16 which provide for disqualification from membership of the Parliament and exemptions. Section 17 provides that if a disqualified person is returned as a member of the Parliament “his return shall be void and his seat vacant”. So while there is no specific rule that an ineligible person may not be a candidate in a Scottish Parliament election, there is a de facto prohibition as they would be unable to take their seat if successful.
10.Section 15 provides the grounds by which a person is disqualified from being a member of the Parliament. Provision about nationality is made by subsection 15(1)(b) of the 1998 Act. That provision transposes the House of Commons’ nationality requirements into the Scotland Act. The specific disqualification stems from the Act of Settlement 1700, but the UK Parliament’s website sets out the position in plain English:-
“To stand as a candidate in a UK Parliamentary General Election you need to be at least 18 years old and:
	a British citizen
	a citizen of the Republic of Irelanda citizen of a commonwealth country who does not require leave to enter or remain in the UK, or has indefinite leave to remain in the UK”.(6)
11.Section 2 of the Scottish Elections (Franchise and Representation) Act 2020 (the “2020 Act”) amended section 16 of the Scotland Act 1998 to create an exception to that, extending the categories of persons who may be members of the Scottish Parliament. This enabled foreign nationals with indefinite (or ‘unlimited’) leave to remain to stand as candidates in Scottish parliamentary elections.
12.Equivalent provision is made for local government (also known as local authorities or councils) by section 29 of the Local Government (Scotland) Act 1973 (the “1973 Act”). This section has been expanded over a number of years. As enacted, it enabled British subjects and Irish citizens to stand. The terminology of British subject was updated to the current label of “qualifying Commonwealth citizen”.(7) Between the entry into force of the Treaty of the European Union and the UK’s withdrawal from the EU, section 29 included provision enabling EU citizens to stand and hold office.(8)
13.Section 3 of the 2020 Act inserted a new category of eligible persons labelled “qualifying foreign nationals”. This definition mirrors the text which was inserted into section 16 of the Scotland Act at the same time.
14.Finally, section 29 of the 1973 Act was amended by the Scottish Local Government Elections (Candidacy Rights of Foreign Nationals) Act 2022 (the “2022 Act”). This added an additional category of persons labelled “schedule 6A nationals”. These are nationals of countries with whom the UK has a bi-lateral treaty relating to candidacy in municipal elections (currently Denmark, Luxembourg, Spain, Portugal and Poland). Nationals of these countries may stand for election in local government elections in Scotland if they have any form of leave to remain.
15.“Leave to remain” is a term of art founded in the Immigration Act 1971 (the “1971 Act”). Section 3(1)(a) of that Act provides that a person who is not a British citizen shall not enter the UK unless given leave to do so. Section 3(1)(b) provides that such leave may be granted either for a limited or for an indefinite period of time. British citizenship is determined by reference to the British Nationality Act 1981. Section 3(2) provides that the Secretary of State for the Home Department (often referred to as the Home Secretary) shall make rules as to the practice followed in administration of the 1971 Act. These are the immigration rules.(9) They include rules as to periods of leave to remain and how conditions to leave to remain are attached in different circumstances.
16.Examples of people who may be lawfully present in the UK with limited leave to remain include those with student visas, work and business visas and certain visas given to the family members and dependents of persons who themselves have leave to remain in the UK. It excludes persons who have applied for refugee status in the UK and are awaiting a decision (these persons are also known as asylum seekers) or persons whose application has been refused. It also excludes people who are unlawfully present in the UK or who are lawfully in the UK without leave to remain. This final category may include diplomatic missions, armed service personnel and stateless persons.
17.The EU settlement scheme was established to provide for EU, EEA and Swiss citizens living in the UK at the end of the transition period in accordance with the UK’s obligations under the Withdrawal Agreement.(10) In almost all cases, the deadline for applying for the EU settlement scheme has now passed. The scheme has two tiers. Settled status is a form of indefinite leave to remain open to eligible persons who had lived continuously in the UK for 5 years prior to their application. Persons who had less than 5 years continuous residence in the UK were able to apply for pre-settled status. This is a form of limited leave to remain which may be subject to extension and which is designed to lead to settled status.
18.Part 1 of the Act contains provision which would extend candidacy rights to all foreign nationals with any form of leave to remain. This Part confers candidacy rights only. That is because voting rights have already been conferred by virtue of section 1 of the 2020 Act. That section amended the Representation of the People Act 1983 to extend the franchise for Scottish elections to all foreign nationals who have any description of leave to enter or remain in the United Kingdom