Illegal Migration in India

Aug23,2020 #NRC
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By Chidige Saivarshitha-

Generally ‘illegal immigration’ and ‘illegal immigrants’, the meaning is the immigration without valid Passport and Visa/or any other travelling document which are recognized under the law of the land. The immigration becomes legal only when the host country recognizes the people as individuals or a group as Refugees or asylum seekers.

India hasn’t provided any citizenship for illegal migrants and their children are very much deprived with no legal status.

India does not provide any permanent residency without fixing conditions. One can acquire the permanent residency from India if they fulfil these conditions. In case of undocumented migrants, these conditions are not possible for them. Only Overseas Citizenship of India is applicable to acquire permanent residence in India which works only for the people of Indian Origin.

Illegal migrant in India:

In India a an illegal migrant is considered as a foreigner if

(i) They are the people who entered India with no valid passport or any further documents relating to travelling under law

(ii) They are the people with valid travelling documents and passports but the period of time is beyond the permitted time as per law.

They are excluded in terms of birth, registration, or naturalization.

The citizenship cannot be acquired by the illegal migrants if they were born on or after December 3, 2004.

2016 Citizenship Amendment bill:

In 2016, the citizenship amendment bill was introduced before Loksabha and came to the conclusion by stating that the illegal migrants from Afghanistan, Bangladesh or Pakistan who came to India on or before December 31, 2014 and the people from these countries should belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities only to escape from the imprisonment and deportment.[1]

The Illegal Migrants (Determination by Tribunal)

In 1983, during Indira Gandhi’s Government the act related to illegal migrants i.e., The Illegal Migrants (Determination by Tribunal ) (IMDT) Act was enacted and in 2005, it was struck down the case Sarbananda Sonowal v. Union of India[2]

Sarbananda Sonowal v. Union of India.[3]

In this case, the Justices of the Supreme Court, S.B. Sinha and P.K. Balasubramanyan removed the Foreigners (Tribunals) Amendment Order, 2006 as it is unnecessary and there is no reason to state this.  The Supreme Court of India held that there was a lack of will to state that the undocumented immigrants were deported. The Foreigners (Tribunals) Order, 1964 was made inapplicable to Assam, discriminatory and against the Article 14 of the Constitution. The Centre stated that it is necessary to the 2006 amendment to refer in the tribunal without making any enquiry whatsoever. The Foreigners Tribunal can give judgment better by stating whether prima facie case against a suspected foreigner warrants issue of notice. The centre said that a person can claim principles of natural justice and Article 21 of the Indian Constitution if he had already entered India

The Supreme Court said that the uncontrolled/undocumented/illegal migration will definitely be threat to the Nation’s integrity. The Supreme Court relied on these two decisions to justify the intervention in the petition filed by Assam Public Works on August 13.[4]

Undocumented migration in US:

There are two things to consider in the US to state whether the illegal migrants can live in the US. They are:

1) Whether the people are born in US

2) Whether she qualifies to stay under any form of immigration relief

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside is the 14th Amendment to the US Constitution.

In 1868, it was ratified and gave citizenship to the newly emancipated slaves of African origin. It interpreted that the undocumented aliens children if born in US can stay in US as citizens of that country. Many instances and arguments raised against this to prohibit children of undocumented parents taking the US Citizenship.

Even the children of many undocumented migrants were equivalent to the children with US citizenship by attending schools and by speaking English, they are not considered as citizens of US under current law. They qualify for asylum for a green card based on marriage or another close family relationship to a U.S. citizen or permanent resident.[5]

Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Public Law

The Immigration and Nationality Act was amended for improving the border security and enforcement, penalties were enhanced for alien smuggling and document fraud, and also revised procedures for aliens removal.

Child Born Outside and Residing Permanently in the United States; Requirements for Automatic Acquisition of Citizenship 

Code of Federal Regulations: This describes the requirements for obtaining citizenship for an alien child brought to the United States to reside with or be adopted by parents who are U.S. citizens.

Child Born Outside the United States; Requirements for Application for Certificate of Citizenship 

Code of Federal Regulations: Describes the process for a U.S. citizen parent to obtain a certificate of citizenship for his or her alien-born child, including an adopted child.[6]

Illegally or Legally, many immigrants come to India to develop economically. Many persons with no state are there in India who are even not recognised as refugees or asylum-seekers or even as foreign nationals.

E.g.: Bangladeshis, East Pakistanis

The non-citizens in India get legal protection as fundamental rights from Indian Constitution. This is influenced to founding father of Indian Constitution from the Charter of the United Nations (1945) and the Universal Declaration of Human Rights (1948)

1951 Refugee Convention:

The 1951 Refugee Convention or 1967 protocol is signed or ratified by India. So India is not bound to follow the 1951 Refugee convention or 1967 protocol and it is up to the government to recognise the refugees. The refugee policy is based on the relations between India and that particular country. They are normally treated as Foreigners or ‘aliens’ who come under “The Foreigners Act 1946”, The “Passports Act 1967”, and “The Registration of Foreigners Act” has become applicable.

The illegal migrants (Determination by Tribunals) Act 1983:

Many of the deported persons from East Assam returned back to India after Independence and stayed in that state as stateless persons and not recognized as citizens of India or Present Bangladesh. The illegal migrants (Determination by Tribunals) Act 1983 stated in the amendment act, 1986 mentioned that those who came to India after 25th March 1971, shall be ‘foreigner’, who further will not be treated as alien.

The people from Bengali settlers who came to India and settled in Mumbai and Delhi before formation of Bangladesh and also the Bengalis from West Bengal are declared as the stateless illegal and then they departed to Bangladesh.

Economic migration:

Economic migration is when the host country recognizes that the illegal migration is for the individual/group of people to develop economically. Most of the Economic migration in our country is through illegal migration which is evident in the incidence of ‘Stranded Bangladeshis’ in February 2003).

Role of BSF, CRPF or State Police:

This context on the side of political issues is like illegal immigration and government’s role in general and the role of law enforcement agencies like BSF, CRPF or State police became questionable. The issue becomes complicated if both the countries like Bangladesh and India say that these illegal migrants are not the citizens of their countries.  The illegal migration is more in North-East India with 1.2 crore illegal migrants especially Bangladeshis. As illegal immigrants violate the Foreigners Act 1946 the Border Security Force (BSF), media and various Political parties often press for strict vigil in the border and see that no rules were breached.

The Central Government is with the idea to issue identity cards since a long time to resolve the illegal immigration problem. In 2003, the central government declared that around 11000 Pakistani nationals are to be deported as they are presently illegally staying in India. But before deporting these illegal migrants by the State and Central government through various ministries, the obligations of Human rights and principle of Natural Justice are to be considered.

Under the Registration Act 1939, the Foreigners Act 1946 and the Passport Act 1967, the refugees and all the foreigners entered in the country are registered. The foreigners can be restricted under these laws but exemption provisions in these laws are applicable to refugees. But Among many legislations upon the refugees in India, the most important legislation which impacts the refugees is Determination by Tribunals Act 1983. The rules and regulations to manage affairs of the refugees and asylum-seekers like Tibetans, Sri Lankans, East Pakistanis etc. are issued by the administrative authorities

Chairman, Railway Board and Others v. Chandrima Das[7]

In the case Chairman, Railway Board and Others v. Chandrima Das, the Supreme Court held that even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the constitutional provisions.

Certain articles of the 1951 Refugees convention.

These includes: –

(a). Article 7- India provides refugees the same treatment as all aliens,

(b). Article 3- India fully applies a policy of non-discrimination,

(c). Article 3A as no penalty is imposed on illegal entry, Non-binding domestic policies are laid down in Art 51 of the Constitution which is non-enforceable because of its presence in Part IV of the Indian Constitution

(d). Article 4- religious freedom is guaranteed,

(e). Article 16- free access to the courts is provided,

(f). Article 17 and 18- work permits have no meaning and refugees do work, thus complying with these articles on wage earning rights,

(g). Article 21- freedom of housing is allowed and refugees need not stay in camps, for freedom of movement is guaranteed to all aliens, except in certain areas where special permits are required not only for aliens but also for all Indians.[8]

Conclusion and Suggestions:

Citizenship should be provided to the stateless persons and all kinds of atrocities sponsored by the governmental agencies should be stopped following the ruling of the Supreme Court in this regard. UNHCR should try to expand assistance to the refugees and asylum seekers in India. Judicial pragmatism and insight analysis of the plight of refugees, asylum seekers and undocumented immigrants are urgently needed from our Courts to avoid the situation of ‘merry go round’.


[1] Laws Concerning Children of Undocumented Migrants: India, https://www.loc.gov/law/help/undocumented-migrants/india.php

[2] Illegal Migrants, https://en.wikipedia.org/wiki/Illegal_immigration

[3]Sarbananda Sonowal and Ors. vs. Union of India (UOI) and Ors., MANU/SC/5514/2006

[4] V. Venkatesan, The NRC case: The Supreme Court’s role,(Oct.11,2019), https://frontline.thehindu.com/cover-story/article29498707.ece

[5] Illona Bray, Can Children of Undocumented Immigrants Legally Stay in the US, https://www.alllaw.com/articles/nolo/us-immigration/can-child-undocumented-illegal-immigrant-legally-stay.html

[6] Immigration and Child Welfare Laws and Policies, https://www.childwelfare.gov/topics/systemwide/diverse-populations/immigration/understandingimm/laws/

[7]The Chairman, Railway Board and Ors.  vs. Chandrima Das and Ors., MANU/SC/0046/2000

[8] Conclusions And Suggestions, https://shodhganga.inflibnet.ac.in/bitstream/10603/66034/13/13_chapter%207.pdf

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