Back to Index of Laws Concerning Children of Undocumented Migrants

Summary

Illegal migrants are excluded from the acquisition of citizenship through birth, registration, or naturalization in India. There is no program to grant illegal migrants or their children legal status or citizenship.  

I. Introduction

In India, the entry, stay, and exit of foreign nationals are primarily regulated by the Passport Act 1920,[1] the Foreigners Act 1946,[2] and the Registration of Foreigners Act 1939.[3]  Citizenship requirements and pathways are predominantly regulated by the Indian Constitution[4] and the Citizenship Act, 1955.[5]  The Foreigners Division of the Ministry of Home Affairs (MHA) administers all matters, including policies, statutes, and rules, related to visas, immigration, citizenship, and “overseas citizenship.”[6]

Back to Top

II.  Illegal Migrants and Legal Status

India does not appear to have a system of permanent residency or green cards comparable to the United States.  Only persons of Indian origin are allowed to live and work in India on a permanent basis through the Overseas Citizenship of India (OCI) program.  More recently, the government of India has introduced a program for permanent residency status for foreign investors.[7]

There is no evidence that the Indian government provides residency permits or visas (at least on an organized basis) to illegal migrants or their children.  However, a recent news report  indicated that,

[i]n September 2015 and July 2016, the central government exempted certain groups of illegal migrants from being imprisoned or deported. These are illegal migrants who came into India from Afghanistan, Bangladesh or Pakistan on or before December 31, 2014, and belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities. Illegal migrants from this group cannot be imprisoned or deported for not having valid travel documents.[8]

Back to Top

III.  Illegal Migrants and Citizenship

Under current law, Indian citizenship is largely determined by the rule of jus sanguinis (citizenship of the parents) as opposed to jus soli (place of birth), and India “provides for a single citizenship for the whole of India.”[9]  A person can be a citizen by birth, descent, registration, or naturalization.[10]

Under the Citizenship Act an “illegal migrant” is defined as a foreigner who has entered into India—

(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or

(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time[.][11]

An illegal migrant is excluded from the acquisition of citizenship through birth, registration, or naturalization.  There is no program to grant citizenship to illegal migrants or their children.

The children of illegal migrants cannot acquire citizenship by birth if they were born on or after December 3, 2004.  According to the 1955 Act, a person born in India on or after January 26, 1950, and before July 1, 1987, was a citizen by birth “irrespective of the nationality of his parents.”[12]  A person born in India on or after July 1, 1987, but before December 3, 2004, was “considered a citizen of India by birth if either of his parents [was] a citizen of India at the time of his birth.”[13]  A person born in India on or after December 3, 2004, is considered citizen of India by birth only “if both the parents are citizens of India or one of the parents is a citizen of India and the other is not an illegal migrant at the time of his birth.”[14]

In India, citizenship by naturalization can be acquired by “a foreigner (not illegal migrant) who is ordinarily resident in India for twelve years (throughout the period of twelve months immediately preceding the date of application and for eleven years in the aggregate in the fourteen years preceding the twelve months).”[15]  Similarly, for citizenship through registration the Citizenship Act stipulates that “the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant . . . .”[16]

In terms of citizenship by descent, a person born outside of India to an Indian citizen parent on or after December 3, 2004, is not a citizen of India, “unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period.”[17]

Back to Top

IV. Special Instances

A. Assam Accord

In 1985, the central and state governments of India signed an accord with leaders of a movement that arose in opposition to the influx of  “foreigners” from East Pakistan (what today is known as Bangladesh) in the state of Assam as a result of the the breakup of Pakistan.[18]  Pursuant to the Assam Accord, a special provision known as section 6A was inserted into the Citizenship Act, 1955, which regularized or granted citizenship to foreigners from Bangladesh within a certain time period and excluded others.  According to Constitutional Lawyer Gautam Bhatia,

[s]ection 6A of the Citizenship Act – introduced through an amendment in 1985 – was the legislative enactment of the legal part of the Assam Accord.  Section 6A divided “illegal” immigrants of Indian origin (i.e., those whose parents or grandparents were born in undivided India) who came into Assam from Bangladesh into three groups: those who came into the state before 1966; those who came into the state between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and those who came into the state after 1971.  The first group (pre-’66) was to be regularised.  The second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten years.  The third group (’71-onwards) was to be detected and expelled in accordance with law.[19]

B. The Citizenship (Amendment) Bill, 2016

On July 19, 2016, a controversial amendment Bill,[20] the Citizenship (Amendment) Bill, 2016,[21] was introduced in the Lok Sabha, India’s lower house of Parliament, and is currently under consideration by a joint parliamentary committee.  The amendment seeks to exclude “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan,”[22] from the definition of “illegal migrant” in the Citizenship Act, in order to allow persons from these communities to be eligible for Indian citizenship.  The Amendment Bill would also relax the eleven-year “aggregate period of residence” requirement for citizenship by naturalization to six years for persons from these communities.[23]

Back to Top

Prepared by Tariq Ahmad
Foreign Law Specialist
September 2017

---