Laws Concerning Children of Undocumented Migrants


Ever since independence, India has witnessed immigration. In India, the entry, stay, and exit of foreign nationals are primarily regulated by the Passport Act 1920, the Foreigners Act 1946, and the Registration of Foreigners Act 1939. Citizenship requirements and procedures are mainly regulated by the Indian Constitution and the Citizenship Act, 1955.

The Foreigners Division of the Ministry of Home Affairs administers all matters, including policies, statutes, and rules, related to visas, immigration, citizenship, and “overseas citizenship.” The Foreigners Act also authorizes the Indian government to detain an individual before they are deported back to their country.

Illegal Migration in India

India does not have a system of 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. The government of India also introduced a program for permanent residency status for foreign investors.

Indian citizenship is primarily defined by the concept of jus sanguinis (parents’ citizenship). India grants single citizenship for each citizen.

Undocumented migrants are subject to the Foreigners Act of 1946 which defines an immigrant as a person not an Indian citizen.

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 news report indicated that, in 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.

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

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

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.”

A person born in India on or after December 3, 2004, is considered a 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.”

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).”

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.

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 nationals arriving in India with legitimate travel documents and staying beyond their validity, or foreign nationals entering without proper travel documents.

Foreigners Act, 1864

It was the first enactment made to deal with foreigners that provided provisions for foreigners to be expelled. This also permitted arrest, imprisonment, and after incarceration, for a ban on foreigners entering India.

Passport Act 1920

The act gave power to the government to create laws that mandated passport holders to be in control of individuals entering India. It also gave the government the right to deport any person from India who had entered without a passport. 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 states that if a doubt emerges about a person’s identity, it would the person’s liability to prove that he was not an alien.

Foreigners Act, 1946

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.

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 very strong pressure on the authorities to decide if an 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.

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.

Existing Procedure of Appeal for Undocumented Migrants

Assam: 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 states, under the Passport Act, 1920 or the Foreigners Act, 1946, a person accused of being an alien is brought before a local court.

Reasons For Illegal Migration

Political forces: Political considerations were one of the main explanations as Bangladeshi and Pakistani minorities were driven out of their country and into India.

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 the poor.

Stagnant Economic Development and Shortage of Employment: Industrialization in the neighbouring 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 Citizenship (Amendment) Bill, 2019

The Citizenship Act, 1955 regulates who may acquire Indian citizenship and on what grounds.

The Citizenship Amendment Act (CAA), 2019 has been passed by the Lok Sabha on 9 December 2019. The purpose of this bill is to give Indian citizenship to illegal migrants of 6 communities i.e., Hindu, Sikh, Buddhist, Christian, Parsi, and Jain) belong to Bangladesh, Pakistan, and Afghanistan.


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.” A person may be a citizen by birth, descent, registration, or naturalization.


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