Understanding Immigration Laws

Author: Rupal Singh, Mewar Law Institute

INTRODUCTION

IMMIGRATION, this word has a profound meaning in itself because it involves a very vast concept of migration. People migrate from one nation to another to pursue the goal of economic, political, and social stability.

MEANING & SIGNIFICANCE OF IMMIGRATION

Immigration is the process of transfer of individuals from one nation to another to establish a long-term residence. People migrate to a different nation for various reasons such as employment opportunities, to escape a violent conflict, for educational purposes, or to simply become a resident of that country.

Immigration law plays a crucial role in maintaining an orderly system for people moving between countries. It balances the interests of both the nation and aspiring immigrants. By addressing national security and safety concerns, it ensures that potential threats are minimized. Additionally, immigration law contributes to economic growth by regulating the entry of skilled and unskilled migrants and facilitating the exchange of talents and labor across borders. In essence, it’s like the bouncer at the entrance of a party, ensuring everyone follows the rules and benefits the entire community.

CHARACTERISTICS OF IMMIGRATION

VISAS AND ENTRY PERMITS: Foreign nationals seeking to enter and stay in a country must obtain authorization, usually in the form of visas or entry permits. The specific requirements and visa types vary based on the purpose of the visit and the immigration policies of the country. These are some common visa categories:

Visitor Visa: These allow individuals to visit the country for tourism, family visits, or other temporary reasons.

Work Visa: Work visas authorize foreign nationals to work within the country. They are typically granted to individuals with specific skills or knowledge.

Student Visa: Student visas are issued to students who wish to pursue their studies at educational institutions in a foreign country.

Family Visa: These enable family members or partners of citizens or permanent residents to join them in the country.

TEMPORARY AND PERMANENT RESIDENCE: Immigration law defines the requirement for both temporary and permanent residence. This often depends on some factors such as an individual’s connection to the country, employment circumstances, and family member’s presence. Temporary residence permits grant foreign nationals the right to reside for a limited period, whereas permanent residence permits enable individuals to live and work indefinitely, often leading to eligibility for citizenship.
CITIZENSHIP AND NATURALISATION: Immigration law lays down some procedures to acquire citizenship which can occur through birth, descent, or naturalization.

Citizenship by Birth: Automatically granted to individuals born within the country’s territory, with some exceptions.

Citizenship by Descent: Acquired by Individuals with at least one parent who is a citizen of the country.

Citizenship by Naturalisation: A process allowing eligible foreign nationals such as long-term residents or spouses of citizens to apply for citizenship. Requirements typically include language proficiency, knowledge of the country’s history, culture, and legal system, and demonstrating good character.

REFUGEE AND ASYLUM POLICIES: Countries have specific laws and regulations concerning refugees and asylum seekers, aiming to provide protection and support to those escaping persecution or conflict in their home countries. A Refugee is someone facing fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group whereas Asylum is a form of protection provided to individuals who have left their country of origin due to fear of persecution. Asylum seekers must apply upon entering the host country and undergo a thorough assessment of their claims.

INDIA AND IMMIGRATION LAW

The Immigration law of India includes both the laws regarding foreign nationals’ entry to the country and laws regarding acquiring citizenship in the country. Acts Governing Immigration in India are:

Foreigners Act, 1946: This principal legislation empowers the Indian government to regulate the movement and presence of foreigners within the country. This Act provides rules and procedures regarding registration, presence, and departure, of foreign nationals.

Section (3)(1) of this Act gives power to the Central Government to prohibit, regulate, or restrict the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.

Passport (Entry into India) Act, 1920: This act governs entry into India and provides guidelines for passport holders.

Registration of Foreigners Act, 1939: This Act deals with the registration of foreign nationals.

CITIZENSHIP UNDER THE INDIAN CONSTITUTION

Part II of the constitution simply describes classes who would be deemed to be citizens of India at the commencement of the constitution. Article 11 expressly confers power on Parliament to make law about the citizenship and the parliament has enacted the Indian Citizenship Act,1955 as discussed above.

The following persons under Articles 5 – 8 of the constitution of India shall become citizens of India at the Commencement of the Constitution.

Citizenship by Domicile (Article-5): Domicile in India is considered an essential requirement for acquiring the status of a citizen in India. However the term ‘Domicile’ has not been defined in the constitution. The domicile of a person is generally considered in that country in which he either has or is deemed by law to have his permanent house. There is a distinction between ‘domicile’ and ‘residence’. Residence is the place where the person is living for a temporary period whereas domicile means the permanent home.

According to Article 5, a person can acquire citizenship by domicile if he fulfills the following criteria:

-he must have the domicile of the territory of India,

-such a person must fulfill any one of the three conditions laid down in the provision namely:

-He was born in India

-Neither of his parents was born in India

-He must have been ordinarily a resident in the territory of India for not less than five years immediately before the commencement of the constitution.

Two types are Domicile of Origin and Domicile of Choice. While the former is attached to the individual by birth, the latter is acquired by residence in a territory subject to a distinctive legal system, to reside there permanently.

In Pradeep Jain v Union of India, The Supreme Court has held that in India Article-5 recognizes only one domicile which is the domicile of India. It does not recognize the domicile of the state. The domicile of a person does not change if he moves from one state to another.

Citizenship of emigrants from Pakistan (Article-6): Article 6 of the Indian Constitution deals with the right of citizenship for certain persons who migrated to India from Pakistan. If an individual migrated from the territory now included in Pakistan and meets these conditions: Either they or their parents or grandparents were born in India (as defined in the Government of India Act, 1935). The migration occurred before the commencement of the Constitution (January 26, 1950). Then, they are deemed to be a citizen of India at the start of the Constitution.
Citizenship of migrants to Pakistan (Article-7): Article 7 of the Indian Constitution says that if someone moved from India to what is now Pakistan after March 1, 1947, they won’t be considered an Indian citizen. However, this rule doesn’t apply if they return to India with a permit for resettlement or permanent return issued by the authorities. In that case, they’re still considered to have migrated to India after July 19, 1948.
Citizenship of Indian Abroad (Article-8): If someone was born in India (as defined by the Government of India Act, 1935) or has parents or grandparents who were born in India as per that Act, and they are ordinarily residing in any country outside India (also defined by that Act), they shall be deemed to be a citizen of India if they have been registered as such by the diplomatic or consular representative of India in the country where they currently reside.

CITIZENSHIP AMENDMENT ACT, 2019

Citizenship (Amendment) Act, 2019 (CAA) was passed in 2019, it allows Indian citizenship for religious minorities (Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians) who fled from Pakistan, Bangladesh, and Afghanistan due to religious persecution.

Eligible migrants who entered India by December 31, 2014, can get fast-track citizenship.

The recent rules, aligned with the 2019 amendment to The Citizenship Act, of 1955, aim to grant Indian citizenship to migrants who belong to specific religious communities Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians). These migrants entered India before December 31, 2014, from Pakistan, Afghanistan, or Bangladesh. The Home Ministry is exploring an online system for citizenship application, processing, and grants under the Citizenship Amendment Act (CAA). Eligible applicants include individuals of Indian origin, spouses of Indian citizens, minor children of Indian citizens, those with registered Indian citizen parents, and Overseas Citizens of India Cardholders.

IMMIGRATION LAWS OF FOREIGN NATIONS

Let’s delve into the immigration laws of four countries- the United Kingdom, the United States, Australia, and Canada.

UNITED KINGDOM

Immigration Rules: These are like the “rules of the game” for people who want to move to the UK. They cover things like getting permission to enter, staying there, working, and being with family. They even address situations where someone might need protection (like asylum).
Points-Based System (PBS): Introduced in 2020, this system assesses applicants based on points for factors like skills, qualifications, and job offers.
Family Members: The UK allows family reunification for spouses, children, and dependent relatives.

UNITED STATES

Immigration and Nationality Act (INA): This federal law governs immigration and citizenship. It covers admission, naturalization, deportation, and refugee protection.
Principles: The US system emphasizes family reunification, skilled workers, refugee protection, and diversity.
Visas: Various visa categories exist, such as employment-based (H-1B), family-based (F-1), and diversity visas (DV lottery).

CANADA

Immigration and Refugee Protection Act (IRPA): This key statute governs immigration and refugee programs. It outlines who can be admitted, sponsorships, removals, and tribunal powers.
Integration and Citizenship: Canada focuses on integration, economic contributions, and facilitating Canadian citizenship.
Shared Jurisdiction: Immigration authority is shared between federal and provincial/territorial governments.

AUSTRALIA

Migration Act 1958: This law regulates immigration, visas, and citizenship. It covers entry, residence, and removal.
Permanent and Temporary Residency: Australia selects foreign nationals as permanent and temporary residents. It also offers protection to refugees.
Integration: The goal is to help immigrants and refugees settle and fully integrate into Australian society and the economy.

EFFECT OF BEING AN ILLEGAL IMMIGRANT

Being an illegal immigrant can have various effects:

Challenges and Risks:

Dangerous Journey: Many illegal immigrants face perilous journeys to reach their destination.
Detention and Deportation: If caught, they may be detained and deported back to their home country.

Social and Economic Impact:

Undocumented Status: Lack of legal status makes it hard to access basic services (like healthcare and education).

Exploitation:

Some employers take advantage of their vulnerable position.
The strain on Resources: Communities may feel the strain on public services.

Legal Consequences

Breaking the Law: Being undocumented means living outside the legal system.
Risk of Arrest: They can be arrested for immigration violations.

CONCLUSION

Immigration involves people moving from one nation to another for various reasons. Immigration laws play a crucial role in maintaining order, balancing national interests, and ensuring safety. These laws regulate the entry of migrants, contribute to economic growth, and facilitate talent exchange. Ultimately, immigrants often seek long-term settlement and must navigate each country’s citizenship requirements.

Immigration includes the key elements which are the visa and entry permits, temporary and permanent residence, the procedure of citizenship and naturalization, and the refugee and asylum policies.

Immigration laws vary by country. In India, the Indian Citizenship Act of 1955 outlines five methods for acquiring citizenship. Eligibility criteria are specified in the Act, and the Constitution (Articles 5-11) also addresses citizenship. Other relevant Acts include The Foreigners Act, of 1946, the Passport (Entry to India) Act, of 1920, and the Registration of Foreigners Act, of 1939. Similarly, countries like the UK, USA, Canada, and Australia have their immigration policies and laws governing foreign nationals’ immigration and citizenship.

In simpler terms, immigration laws are designed to regulate the entry, stay, and rights of foreign nationals in a country. These laws address issues related to citizenship, visas, deportation, and asylum. They aim to strike a balance between national security and humanitarian concerns.