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Immigration Laws In India



Immigration Laws In India

Introduction

As per the Merriam-Webster Dictionary Immigration is when a person enters a new country for the purpose of establishing permanent residence and ultimately gaining citizenship. Immigration implies long-term permanent residence by the immigrants. Tourists and short-term visitors who come to explore and travel are not considered immigrants. The objective of immigration is gaining citizenship or nationality in a different country due to a variety of economic, political, religious and personal reasons. For example, when a person leaves his domicile country say, United States and move to a different country say, India and try to set up permanent citizenship there. As per the research conducted by Pew Research center, as of 2015, about 5.2 million immigrants live in India, making it the 12th-largest immigrant population in the world.
Immigration law refers to the national statutes, regulations, and legal precedents governing immigration into and deportation from a country. Every nation has specific laws to govern Immigration within it.
Indian nationality law is mainly based on the principle of jus sanguinis i.e., citizenship by right of blood, as opposed to the jus soli i.e., citizenship by right of birth within the territory.
In India, the Constitution is the supreme law of the land and all statutes, laws, and regulations derive their origin from the Constitution of India. Part II of the Constitution contains provisions relating to Citizenship in India. Article 5-11describes and lays down provisions for the classes of persons who would be deemed to be the citizens of India at the commencement of the Constitution.
According to Article 5, a person is entitled to citizenship by domicile if he, at the commencement of the Constitution, has his domicile in the territory of India and fulfills the following conditions-
(a) Was born in the territory of India; or

(b) Either of whose parents were born in the territory of India; or

(c) Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.

Article 6 provides that a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if –

(a) he or either of his parents or any of his grandparents were born in India as defined in the Government of India Act, 1935 (as originally enacted); and

(b)(i) In the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or

(ii) In the case where such person has so migrated on or after the nineteenth day of July 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government.

Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.

Article 7 says, notwithstanding anything contained in Articles 5 and 6, a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India.

Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.
Article 8 provides that any person who or either of whose parents or any of whose grandparents were born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefore to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of India.
Article 9 states that if a person voluntarily acquires the citizenship of any foreign state he shall not be able to claim citizenship of India under Articles 5, 6 and 8.
Article 10 provides that every person who is or is deemed to be a citizen of India under any of the foreign provisions shall continue to be a citizen of India subject, however, to the provisions of any law made by the Parliament.
Article 11 expressly confers powers to the Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
In exercise of its power conferred by Article 11 of the Constitution, the Parliament has enacted the Indian Citizenship Act, 1955.

The Citizenship Act, 1955

This Act provides for the provisions relating to the acquisition and termination of citizenship subsequent to the enactment of the Constitution.

Granting of citizenship

Citizenship by birth

Section 3 of the Citizenship Act, 1955 provides that any person who is born in India, on or after the 26th day of January, 1950, but before the 1st day of July, 1987, any person born on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents are citizens of India at the time of his birth or any person born on or after the commencement of the Citizenship (Amendment) Act, 2003, where, both of his parents are citizens of India or one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.

Citizenship by descent

Section 4 of the Act says, Persons born outside India on or after 26 January 1950 but before 10 December 1992 are citizens of India by descent if their father was a citizen of India at the time of their birth.

Persons born outside India on or after 10 December 1992 are considered citizens of India if either of their parents is a citizen of India at the time of their birth.

From 3rd December 2004 onwards, persons born outside of India shall not be considered citizens of India unless their birth is registered at an Indian diplomatic mission within one year of the date of birth. In certain circumstances, it is possible to register after one year with the permission of the Central Government. The application for registration of the birth of a child must be made to an Indian diplomatic mission and must be accompanied by an undertaking in writing from the parents of the child that he or she does not hold the passport of another country.

Citizenship by registration

The Central Government may, on an application, register as a citizen of India under Section 5 of the Citizenship Act 1955 any person (not being an illegal migrant) if s/he belongs to any of the following categories:

  • A person of Indian origin who is ordinarily resident in India for seven years before making an application under Section 5(1)(a) (throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the 12 months).
  • A person of Indian origin who is ordinarily resident in any country or place outside undivided India;
  • A person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
  • Minor children of persons who are citizens of India;
  • A person of full age and capacity whose parents are registered as citizens of India.
  • A person of full age and capacity who, or either of his parents, were earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
  • A person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.

 

Citizenship by Naturalization

As per Section 6, a certificate of naturalization may be granted by the Central Government to any person who in its opinion has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, and has taken the oath of allegiance in the form specified in the Second Schedule. Such a person is granted citizenship of India by Naturalization.

 

Renunciation and termination of Indian citizenship

As per Section 8 of the Act any competent person making a declaration of renouncing his Indian citizenship in the prescribed manner to the prescribed authority and, upon such registra­tion of renunciation, that person shall cease to be a citizen of India. Provided that if such declaration is made during any war in which India may be engaged, registration shall be with­held until the Central Government otherwise directs.

Section 9 provides for the termination of citizenship of any citizen of India who by naturalization, registration otherwise voluntarily acquires the citizenship of another country shall, upon such acquisition cease to be a citizen of India. Provided that nothing in this sub-section shall apply to a citi­zen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.

 

PIO card and OCI card

The scheme of persons of Indian origin (PIO) was launched in 1999 and these cards were issued to persons currently holding the foreign passport or are citizens or naturalized citizens of a foreign country but who could prove their Indian origin up to three generations before. As per the scheme certain persons are not eligible for the grant of PIO card including citizens of Pakistan, Bangladesh, and other countries as may be specified by the central government in this behalf. The PIO card is generally valid for a period of 15 years and must be accompanied with a foreign passport at the time of entering or departing India.

The scheme of Overseas Citizenship of India (OCI) was launched during the Pravasi Bharatiya Divas convention at Hyderabad in 2006 and these cards are issued to those who could prove their Indian origin or those who have Indian citizen spouses, in spite of having citizenship of other countries, apart from India. Therefore, Overseas Citizenship of India card not being an actual citizenship card of India and thus, would not amount to dual citizenship. OCI holders must carry the Indian visa along with the passport which displays the lifetime visa while travelling to India as the OCI card is not a substitute for an Indian visa.

 

Citizenship (Amendment) Bill, 2015

On January 9, 2015, the Government of India passed an ordinance declaring People of Indian Origin (PIO) cards to be now called as Overseas Citizen of India (OCI) cards.

As a result of this merger anyone holding a PIO card will automatically inherit the benefits and rights of the OCI card scheme. The objective of merging PIO and OCI schemes is to maximize benefits and reduce immigration procedures for non-resident Indians (NRIs) visiting India.

With this merger, former Indian citizens will receive benefits from both PIO and OCI card schemes. This merger has done away with the requirement of PIO cardholders to register through Foreigner Regional Registration Offices (FRROs) and will now receive greater work, residence, and political benefits.

 

VARIOUS OTHER ACTS GOVERNING IMMIGRATION INTO INDIA:

THE PASSPORT (ENTRY INTO INDIA) ACT, 1920

This Act makes it mandatory for all persons entering the territory of India by water, land or air, the possession of a valid passport and any contravention to the provisions of this Act shall be punishable with imprisonment for a term which may extent to three months or with fine or with both.

 

PASSPORT ACT, 1967

It is an act to provide for the issue of passports and travel documents and to regulate the departure from India of citizens of India and for other persons. It provides that no person shall depart from or attempt to depart from, India unless he holds a valid passport or travel document.1

Section 4 of the Act provides for the issue of following classes of passports –

  1. Ordinary Passport
  2. Official Passport
  3. Diplomatic passport

Also, following classes of travel documents may be issued under the Act –

  1. Emergency certificate authorising a person to enter India.
  2. Certificate of identity for the purpose of establishing the identity of
  3. Such other certificate or document as may be prescribed.

 

THE REGISTRATION OF FOREIGNERS ACT, 1939 AND THE REGISTRATION OF FOREIGNERS RULES, 1992

This act makes it mandatory for every passenger who arrives in India on board any vessel or enters or leaves India by land and who wishes to stay in India beyond a period of one hundred and eighty days to furnish true particulars regarding their name and nationality, age, sex, place of birth, address or intended address in India to the Registration officer in their jurisdiction within two weeks of their arrival in India. Pakistani nationals are required to register within 24 hours of arrival regardless of the duration of their stay. Foreign children below the age of 16 years are exempt from registration requirements.

 

THE IMMIGRANTS (EXPULSION FROM ASSAM) ACT, 1950

This act has been enacted by the legislature for the expulsion of certain immigrants from Assam, whose stay is detrimental to the interests of the general public of India. Any person who contravenes or attempts to contravene or abets the commission of any order made under this Act shall be punishable with imprisonment for a term which may extend to 3 years and also be liable to fine.

 

THE IMMIGRATION (CARRIERS LIABILITY) ACT, 2000

An purpose of this act is to make the carriers liable in respect of passengers brought by them into India in contravention of the provisions of the Passport (Entry into India) Act, 1920 with a penalty of Rs. one Lac, subject to the provision that no order of liability be passed without giving the carrier an opportunity of being heard in the matter.

 

THE FOREIGNERS ACT, 1946

This Act has been enacted with the objective of recommending, regulating and restricting a foreigner amongst other things their presence and their continued presence in India. This Act conferred several powers to the Central Government in pursuance to the entry of foreigners or immigrants, their presence in India and in regard to their departure. As per this Act, a foreigner cannot enjoy or visualize any kind of Fundamental Guarantees or Fundamental Rights though he is entitled to Equality before Law and Equal protection of Laws guaranteed from our Constitution of India.

 

VISA CONVERSIONS AND EXTENSIONS IN INDIA

The Ministry of Home Affairs being the interior ministry of India is responsible for the maintenance of internal security and domestic policy and also has the power of Visa conversions and visa extensions to foreigners present in India. Only in extraordinary circumstances by the Ministry of Home Affairs considers the change of status of visa from one category to another category. For this purpose, the foreigner should normally come in person to the office. In exceptional cases, for the convenience of the foreigners, however, the FRROs/CHIO/FROs are empowered to make extensions/conversions for certain types of Visas without referring the same to the Ministry. Powers of FRRO’s in this behalf are:

  • Extension can be given by FRRO for a period of 5 years in case of foreigners of Indian origin, foreigner married to Indian citizen, foreigner staying in India for more than 20 years.
  • FRRO can extend the VISA for three months in case of Employment & Business Visas and forward the case for further extension up to 1 year, to Ministry of Home Affairs. After obtaining approval from Ministry of Home Affairs, FRRO can extend that VISA for further four years on a year-to-year basis.
  • FRRO can convert and grant an extension of stay to all students studying up to 12th standard in India, whose parents are of Indian origin on year to year basis.
  • FRRO can on the production of a valid ticket for departure grant extension to stay on all types of visas.

 


FOOTNOTE
[1] Objective of the Passport Act, 1967
Citizenship in India
Immigration Act 2016
Immigration Laws
Indian Citizenship Act 1955
Passport Act 1967

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