LAWS CONCERNING CHILDREN OF UNDOCUMENTED MIGRANTS
SHAIK LALBEE (DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY)
Since independence India has been witness to immigration. Few people outside India who had faced religious and political, economic and social persecution race, ethnic persecution and limits on civil liberty have made India its domain. Many others came to India to escape abhorrent poverty and economic stagnation in their region, and better outlook for themselves.
In India, foreign nationals entry, remain, and departure was largely governed by the 1920 Passport Act, the 1946 Foreigners Act, and the 1939 Foreigners Registration Act. The qualifications and directions for citizenship are regulated mainly by the Indian Constitution and the Citizenship Act, 1955. The Ministry of Home Affairs '(MHA) Foreigners Division administers all things relating to visas, immigration, citizenship, and' Overseas Citizenship, including rules, legislation, and regulations. . The Foreigners Act also authorizes the Indian government to detain an individual before they are deported back to their country.
ILLEGAL MIGRATION IN INDIA:
Indian citizenship is primarily defined by the concept of jus sanguinis (parents' citizenship). India grants a single citizenship for each citizen as a whole. Undocumented migrants are subject to the Foreigners Act of 1946 which defines an immigrant as a person not an Indian citizen. According to the Foreigners (Tribunal) Order, 2015 persons belonging to minority communities in Bangladesh and Pakistan, including Muslims, Sikhs , Buddhists , Jains, Parsis and Christians, who were compelled to seek asylum in India due to religious persecution or threat of religious persecution, entered India on or before 31 December with or without valid papers, including passports or other papers.
UNDOCUMENTED MIGRANTS AND LEGAL STATUS:
India does not appear to have a permanent citizenship or green card similar to that in the United States. All citizens of Indian descent are allowed to permanently reside and work in India under the Overseas Citizenship of India (OCI) policy. More recently, India's government has launched a plan allowing overseas investors to gain permanent residence rights. There is little indication that the Indian Government issues undocumented migrants or their children with residence permits or visas (at least on a coordinated basis). The central government removed some categories of undocumented migrants from detention or expulsion during the years 2015 and 2016. They are irregular settlers who landed in India from Afghanistan, Bangladesh or Pakistan on or before 31 December 2014 and belong to the religious sects of Hindu, Sikh, Buddhist, Jain, Parsi or Christians. Illegal migrants from this community cannot be detained or punished for failure to have proper travel papers.
INDIA’S LEGAL FRAMEWORK FOR UNDOCUMENTED MIGRANTS AND THEIR CHILDREN:
· Article 51 states that the State shall seek to foster conformity with international law and treaty obligations in the dealings between organized persons. Foreign national arriving in India on legitimate travel documents and staying beyond their validity, or foreign national entering without proper travel documents.
· Foreigners Act, 1864:
It was the first enactment made to deal with foreigners that provided for foreigners being expelled. This also permitted arrest, imprisonment, and after incarceration, for a ban on foreigners entering India.
· Passport Act 1920 (Entry into India):
The act allowed the government to create laws that mandated passport holders to be in control of individuals entering India. It also provided the government the right to deport any person from India who had entered without a passport. The Passport (Entry into India) Act, 1920, one of the early collection of laws rendered against unauthorized migrants, allowed the government to create regulations allowing citizens entering India to be in possession of passports. This law also gave the government the right to deport any individual from India who had entered without a passport. Section 7 of the Act stipulated that if a doubt emerged about a person's identity, it was the person's duty to show that he was not an alien.
· Foreigners Act, 1940:
This was introduced after World War II, with the adoption of the definition of the "burden of proof." This implied that if a dispute emerged about a person's identity, it was the person's duty to show he was not an alien.
· Foreigners Act, 1946:
The foreigner’s Act 1946 replaced the 1940 Foreigners Act which bestowed specific powers to deal with all foreigners. The act allowed the government to take the required measures, including the use of force, to deter unauthorized migrants. The definition of the 'burden of proof' lies with the individual, and is therefore valid in all states and territories of the Country, not with the authorities provided by this act. This principle was confirmed by a Supreme Court judicial court. The act allowed the government to set up tribunals which will have equivalent powers to those of a civil court. Recent amendments to the Foreigners (Tribunals) Order, 1964 empowered even District Magistrates in all States and territories of the Union were empowered to set up tribunals to determine whether or not a person living illegally in India is a foreigner. Through replacing the 1940 Law, the legislature passed the Immigrants Law, 1946, granted specific powers to negotiate with all immigrants. While identifying a 'foreigner' as an individual who is not a resident of India, it allowed the government to make provision to ban, control or limit foreigners' entry into India. It also limited the privileges foreigners possess as regards their stay in the country if the authority passes any other instructions. The 1946 Act allowed the government to take the required measures including the use of force to maintain conformity with certain directives.
· Illegal Migrants (Tribunal Determination) Act, 1983:
The absence of any clause relating to the 'burden of proof' in the Illegal Migrants (Tribunals Determination) Act, 1983 put a very strong pressure on the authorities to decide if a individual is an illegal migrant.
In addition, a number of non-Indians who could have reached Assam after March 25, 1971, without possessing proper papers, continued residing in Assam. The act was repealed by the Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665. The Supreme Court has suspended all tribunals functioning in Assam under the Act. The Supreme Court then transferred all pending cases to the Foreigners Tribunals established under the Foreigners (Tribunals) Order, 1964, at the IMDT tribunals.
· NRC in Assam: The Assam government in 1951 published a National Register of Citizens (NRC), which contains information for each person such as the name of the father or husband, nationality, sex, age, means of living. The NRC was designed to assist in recognizing and checking legitimate Indian residents and repatriating foreigners. Now the Assam government released the new edition of the NRC recently.
· Multipurpose Identity Card: Aadhaar Project was launched in 2010, to provide each resident of India and the Unique Identification with a unique identity number.
· Amendment to the Citizenship Act: The Citizenship (Amendment) Bill, 2016 seeks to grant citizenship to those who were compelled to seek asylum in India due to religious discrimination or fear of persecution in their home country. We are mainly Muslims, Sikhs, Jains, Buddhists, Parsis and Afghan, Pakistan and Bangladeshi Christians.
CHILDREN OF UNDOCUMENTED MIGRANTS AND CITIZENSHIP:
An irregular immigrant by birth, identification or naturalization is exempt from the gain of citizenship. There is no plan to give Illegal Migrants or their children citizenship.
Undocumented migrant children are unlikely to gain citizenship by birth if born on or after December 3, 2004. According to the 1955 Act, a person born in India on or after 26 January 1950 and before 1 July 1987 was a citizen by birth "regardless of the nationality of his parents. “A child born in India on or after 1 July 1987 but before 3 December 2004 was" considered to be a citizen of India by birth if either of his parents [was] a citizen of India at the time of his birth.
A person born in India on or after 3 December 2004 is deemed to be a citizen of India by birth only "if both parents are Indian nationals or one parent is a citizen of India and the other is not an illegal migrant at the time of his birth."
In India, "An immigrant (not an irregular migrant) who is normally resident in India for twelve years (throughout the span of twelve months immediately preceding the application date and eleven years in the median throughout the fourteen years preceding the twelve months)" will gain citizenship through naturalization.
In terms of citizenship by descent, a child born outside India to an Indian citizen's parent on or after 3 December 2004 is not a citizen of India "unless the parents announce that the minor does not carry a passport from another country and that his birth is recorded in an Indian consulate within one year of the date of birth or with the consent of the Central Government after the expiry of the said time.
EXISTING PROCEDURE OF APPEAL FOR UNDOCUMENTED MIGRANTS:
Currently, any person excluded from the National Register of Citizens (NRC) may, within 120 days of receiving a certified copy of the refusal, approach the Foreigners Tribunals established only in Assam.
· Other states and union territories:
In other Nations, under the Passport Act, 1920 or the Foreigners Act, 1946, a person accused of being a foreigner is brought before a local court.
REASONS FOR ILLEGAL MIGRATION IN INDIA:
· Political forces: Political considerations were one of the main explanations as like Bangladeshi and Pakistani Hindus were driven out of the country and into India.
· Religious Discrimination: In Bangladesh, the then unjust land laws were further distorted to dispossess and alienate the Hindus from their own land and properties through special interest interests and oppressive authorities. Religion has a specific impact as in the case of the Rohingya crisis.
· Increasing Population: Growing population generates higher demands on resources such as land, food, energy, water and forest products and their consequent overuse results in quality deterioration. This process, in turn, fosters disparity in the allocation of resources among rich and poor as the wealthy corner them and deny their share to poor.
· Stagnant Economic Development and Shortage of Employment: Industrialization in the neighboring countries of India has not been able to keep up with the rising population and as a result, the unemployment rate is increasing. Work-age citizens who are unable to find jobs in the country are searching for job opportunities outside.
· Porous Borders: India and Bangladesh, Nepal and Bhutan share a long and porous external boundary. The border crosses a variety of natural and cultural landscapes which question its successful management.
THE CONSEQUENCES OF UNDOCUMENTED MIGRATION IN INDIA:
· Conflicts due to insecurity: Illegal migration has led to frequent conflicts between Indian people and migrants, resulting in their loss of life and property, thereby violating their constitutional rights.
· Political Instability: Tension between locals and migrants over scarce resources, economic opportunities and cultural supremacy, along with the ensuing political instability triggered by the elite's mobilization of public opinion against migrants to seize political power.
· Law and order disturbance: the rule of law and the country's sovereignty are threatened by illegal migrants engaged in illegal and anti-national activities, such as clandestinely entering the country, fraudulently obtaining identification cards, exercising voting rights in India and resorting to trans-border smuggling and other crimes.
· Rise of Militancy: The constant attacks on Muslims perceived in Assam as illegal migrants have given way to radicalization within some parts of the Muslim community with the emergence of militant organizations such as the Assam Muslim United Liberation Tigers (MULTA).
· Tighter border controls: The Indian government has introduced a series of measures, such as increasing the border guarding force's manpower, raising the number of border outposts along the frontier, building fences and issuing several frontier identification cards.
According to existing law, Indian citizenship is primarily defined by the concept of jus sanguinis (parent citizenship) as opposed to jus soli (birthplace), and India "provides a single citizenship for India as a whole." A person may be a citizen by birth, descent, registration, or naturalization. Under the Citizenship Act, a "illegal migrant" is identified as a foreigner who has entered India without a legitimate passport or other travel documents and any other certificate or authority approved by or in compliance with any law in that name or having a legitimate passport or other travel documents and some other certificate or authority which may be issued by or under some statute of that name which stays therein outside the time limit required. The undocumented migrant by birth, identification, or naturalization is exempt from the creation of citizenship. There is no plan to give the illegal migrants or their children citizenship easily by followed by the procedure established by the law.
[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].