Reuven (Ruvi) Ziegler (University of Reading)
Introduction
The election as a Member of the Scottish Parliament (MSP) on the Green party list of Q Manivannan, an Indian citizen with limited leave to remain in the UK who is completing their PhD studies in international relations at the University of St Andrews in Scotland, raises fascinating questions pertaining to the effects of temporality on representation. Will Q be able to serve a full term? And how effective is representation by those holding temporary residence statuses?
Q entered the UK in 2021 to pursue their doctoral studies. They required and obtained a student visa granting them limited leave to remain. Their visa, issued by the UK Home Office, permits students to pursue up to 20 hours a week in employment. As Q’s visa expires later this year, they can apply for a graduate visa, which, for PhD students wishing to remain after their degree, is usually granted for three years. This period falls short of the duration of the next Scottish Parliament (five years). However, it is reported that Q considers applying instead for a global talent visa, intended for ‘leaders in academia or research, arts and culture, or digital technology’. If successful, that renewable visa would allow them to stay in the UK for up to five years. Both routes are discretionary: it is up to the UK Home Office to grant or deny them any requested visas.
Divergent franchises
Across the UK, British citizens, qualifying Commonwealth citizens, and Irish citizens are eligible to vote in all elections. EU citizens who arrived in the UK before 31 December 2020 (the end of the Brexit transition period) are able to vote in local government elections but not in a general election (explainer). Finally, citizens of four non-Commonwealth EU countries (Spain, Portugal, Luxembourg, and Poland) who arrived in the UK after the end of the Brexit transition period are also eligible to vote in local elections due to reciprocal agreements with their respective countries. This rather messy franchise follows neither a clear citizenship-based nor a clear residence-based approach.
Not so for the devolved nations. The devolution arrangements enable devolved nations to set their own eligibility conditions for elections of their governing institutions. In Scotland, since 2020, that has meant that all residents, irrespective of their citizenship, are eligible to vote in local government elections in Scotland as well as in elections to the Scottish Parliament. The franchise extends to all residents regardless of whether they hold limited leave to remain, indefinite leave to remain, or do not require such leave (see my post).
The right to stand for elections
Until 2025, consistent with its view that a distinction between non-citizens is unwarranted, the Scottish legislation applied the same eligibility criteria for standing in elections to the Scottish Parliament to all non-citizens. Candidates had to either demonstrate that they do not require leave to enter or remain in the UK or that they have indefinite leave to remain in the UK. The abovementioned legislation also maintained an age distinction between voting and representation: whereas 16 and 17 year olds could vote for representatives, they could not be elected.
In the 2021 elections to the Scottish Parliament, the SNP ran on a manifesto commitment to change that. The manifesto stated that ‘whilst in government, we have made great strides to extend the right to vote. We have extended the voting franchise in Scottish Parliament and local government elections to 16 and 17 year olds, and all foreign nationals with leave to remain, including all those granted refugee status. We will now go further and extend entitlement to stand for election to all those who are entitled to vote, ensuring a more diverse parliament and local government.’
Yet, following public consultation and extensive debates, the Scottish Elections (Representation and Reform) Act 2025 has seen only the first of these two distinctions fall away, maintaining the age qualification. The Act paved the way for residents with only limited leave to remain, including leave granted for a period that is shorter than the full parliamentary term, to stand for elections.
Scotland does not determine its own immigration policies. Fortuitously, in 2022, the UK government made changes to the immigration rules intended to facilitate the reciprocal arrangements with the four European countries, described above. In a Statement of changes to the immigration rules (18 October 2022), the UK government stated that ‘Standing for or filling an elected post in local or devolved government is not considered to be employment for the purposes of the immigration rules, and conditions restricting employment do not affect the ability to undertake such activities.’ These changes enable the holder of a student visa, which generally restricts their employment, to become an MSP. Neither the public nor Parliament, it turns out, are considered an employer for immigration purposes. Leaving aside the legal peculiarity of this arrangement, it raises two substantive challenges.
Effective representation?
The first challenge concerns effective representation. Assuming we accept that there are sound reasons for imposing conditions of employment on students enrolling in full-time degree programmes, can undertaking a full-time degree programme be compatible with proper representation? Acknowledging this challenge, the Scottish government noted that it is ‘for the electorate to decide whether someone with limited leave to remain can represent them adequately’. One might add that it should also be a matter for the university where a student is pursuing their studies to determine whether they deem the two activities to be compatible.
Temporary representation?
The second and, perhaps, more fundamental challenge to such legal arrangements concerns the temporal dimension of representation. Can a person whose status in the country is not only contingent on their own preferences and actions nor of those of the body in which they serve but on the sovereign discretion of the state, commit to representing their constituents for the duration of their term? Moreover, a student visa is qualitatively different from statuses designed to offer a route to settlement, let alone from indefinite leave to remain: a student visa is intended to be fixed-term and to lead either to long-term commitment to settle in a polity or to leaving it.
One could argue that, by standing for election, a putative representative expresses their wish to remain attached to the political community they seek to represent, even if the decision whether they would be legally allowed to do so ultimately rests with the immigration authorities – which is true of any status short of indefinite leave to remain. Moreover, the fact that individuals can – and occasionally do – resign their parliamentary seats before they complete their full term in office may mean that completion of one’s parliamentary term is desirable, but not essential. Indeed, in Q’s case, should they become ineligible to serve as an MSP, given they were elected on a party list, the next candidate on the list will automatically enter Holyrood.
However, it could be argued that, at the time of their election, those subsequently resigning their seats for reasons that arise during their term are assumed to be committed to serving their full term. The electorate may legitimately expect them to do so. Indeed, uncertainty as to whether they would be able to complete their full term can detrimentally affect their ability to properly represent their constituents. To that effect, while the Scottish legislation’s removal of the distinction between non-citizens is welcome, and should be emulated across the UK, there are good reasons to require a secure immigration status from elected representatives. The right to vote and the right to be elected are not necessarily a mirror image of one another: the effects on governance of an elector leaving the polity before the end of the parliamentary term is qualitatively different than those of a representative.
Concluding remarks
Notwithstanding the particular challenges raised by Q’s election, it is noteworthy that they are among several MSPs who are first-generation immigrants to Scotland. This fact reflects the diversity of Scotland’s population, where, according to the last census, about 7% of the population was born outside the UK. The 2020 and 2025 expansions of eligibility to vote in and stand for elections in Scotland raise normative queries about the interrelations between membership and participation. Such queries are far from settled.