IMMIGRATION LAWS

Although human migration has existed for hundreds of thousands of years, immigration in the modern sense refers to movement of people from one nation-state to another, where they are not citizens. Immigration implies long-term permanent residence by the immigrants. Tourists and short-term visitors are not considered immigrants. However, seasonal labor migration (typically for periods of less than a year) is often treated as a form of immigration. The global volume of immigration is high in absolute terms, but low in relative terms. The UN estimated 190 million international migrants in 2005, about 3% of global population. The other 97% still live in the state in which they were born, or its successor state.

More often, people migrate due to economic reasons. Sometimes political, religious and personal factors are also responsible. The reasons of attractive incentives for migration are known as Pull factors and the compelling circumstances forcing Migration are known as Push factors which are mainly the reasons for Emigration from the country of origin. The push factors may be war, poverty, natural disasters etc. And pull factors may be political stability, higher incomes, family reasons.

Immigration Law is the law which exclusively governs immigration in a nation. So far as foreign citizens are concerned, Immigration Law is related to Nationality Law of a nation governing the matters of citizenship. International Law regulates Immigration Law concerning the citizens of a country. In this regard the United Nations International Covenant on Civil and Political Rights is relevant. The International Organization for Migration is the main intergovernmental organization in the field of Migration. It was initially formed in 1951 as the Intergovernmental Committee for European Migration to help the people displaced during the Second World War. This Organization is committed to the promotion of humane and orderly migration for the benefit of all.

The objective of immigration is gaining citizenship or nationality in a different country. In India, the law relating to citizenship or nationality is mainly governed by the provisions of the Constitution. The Constitution of India provides for single citizenship for the entire country. The provisions relating to citizenship are contained in Articles 5 to 11 in Part-II of the Constitution of India. Articles 5 to 9 of the Constitution determine the status of persons as Indian citizens at the commencement of the Constitution. Article 10 provides for their continuance as such citizens subject to the provisions of any law that may be enacted by the legislature. Under Article 11, the Constitution expressly saves the power of Parliament "to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship". Article 5 states that at the commencement of this Constitution, every person belonging to the following categories, who has his domicile in the territory of India, shall be a citizen of India: 

1) Who was born in the territory of India; or 
2) Either of whose parents was born in the territory of India; or
3) Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement;

Article 6 of the Constitution provides for the rights of citizenship of certain persons who have migrated to India from Pakistan. Article 7 of the Constitution has made provisions for citizenship of certain migrants to Pakistan and Article 8 of the Constitution provides for the rights of citizenship of certain persons of Indian origin residing outside India.

Indian immigration is in a state of flux. The Indian Government has been increasingly faced with the challenge of combating terrorist activity, illegal immigration in India and rampant abuse of certain visa categories like business visas, thereby resulting in the tightening of immigration procedures in India. The changes are not all clearly stated nor have many been formally notified to visitors. Many changes are the net result of notifications issued by the Indian Government to various Indian Consulates abroad, laying down strict criteria that must be met to obtain business and employment visas.

These changes instituted by various Indian Consulates and High Commissions around the globe have raised many questions for clients and professional advisors in relation to appropriate visa categories and related formalities. A few clarifications have been forthcoming from the Union Government in respect of the confusion surrounding the visa status of foreign nationals. These relate to the issue of undertaking activities which technically and specifically are in the nature of 'employment' but are often undertaken in India by foreigners visiting the country on a business visa.

Fresh concerns have emerged relating to the correct visa categories for visitors such as independent consultants like lawyers, accountants, medical professionals etc. who may be deemed to be undertaking 'employment type work' whilst on a business visit in India. Further, the distinction drawn between the legal employer and the sponsor as mentioned in the FAQs also raise some concerns of compliance in respect of Indian laws.

The controversy started with several foreign nationals who were in India on business visas being summoned by their respective FRROs in August and September 2009 and being asked to leave the country by the end of September 2009. The deadline was subsequently extended till October 31, 2009. Apparently, these business visa holders were carrying on project/execution of contracts in India which was in breach of their business visa conditions. It is widely believed that the sudden enforcement was aimed at the large scale abuse of the business visa category by some Chinese nationals who came to India to execute projects/contract work and included both high and low skilled workers. The consequence of the stricter enforcement however applies to all foreigners in India on business visas who may be wholly or partially in breach of the regulations.

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