Page 1617 - 1622 DOI: https://doij.org/10.10000/IJLMH.

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INTERNATIONAL JOURNAL OF LAW

MANAGEMENT & HUMANITIES
[ISSN 2581-5369]
Volume 6 | Issue 3
2023
© 2023 International Journal of Law Management & Humanities

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 1617 International Journal of Law Management & Humanities [Vol. 6 Iss 3; 1617]

Immigration Laws and Challenges in India:

A Comprehensive Analysis
SIDDHARTH SHEKHAR1

ABSTRACT
This article provides a comprehensive analysis of immigration laws and challenges in India.
It explores the historical context of immigration in India, highlighting significant events
such as the refugee crisis during Partition and the influx of Tibetan refugees. The article
examines contemporary laws governing citizenship, visas, and foreign nationals'
registration, emphasizing the distinction between immigration and temporary stays. The
significance of immigration for India's economy and demographic changes is discussed,
raising concerns about potential labour shortages and the impact on education and
research sectors. Additionally, the article explores the historical context of illegal
immigration, focusing on the influx of immigrants from Bangladesh and the challenges
faced by the Indian government in handling this issue. The need for a robust legal
framework for asylum seekers and refugees is emphasized, with a proposal for an Asylum
Bill to address the current gaps in India's refugee policy. The article concludes by
acknowledging the positive aspects of the proposed bill but also highlights areas that
require improvement, such as provisions for diversified asylum, handling mixed flows, and
preventing statelessness. The importance of critically analysing the bill and addressing
related issues is emphasized, calling for comprehensive legislation that aligns with India's
international obligations and humanitarian concerns.
Keywords: Immigration laws, Asylum, Citizenship, Illegal immigration, Refugee policy,
India.

I. INTRODUCTION
As the globalisation period progressed, people began to migrate in increasing numbers in search
of social, political, and economic stability. With a wide variety of attractions, India, a nation
with many different races and traditions, draws immigrants from all over the world. Transferring
people from one country to another with the goal of establishing a permanent presence is known
as immigration. The largest challenge for immigrants is becoming citizens of the host country
and exercising their fundamental rights there.

Despite the fact that humans have been migrating for hundreds of thousands of years, when we

1
Author is a student at University of Petroleum and Energy Studies, India.

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talk of immigration today, we mean the movement of individuals from one nation-state to
another where they are not citizens. Immigration means that the immigrants will live there
permanently for a long time. Tourists and casual guests are not regarded as immigrants.
However, seasonal labour movement that lasts for less than a year is frequently considered to
be immigration.

Immigration law is the only type of legislation that controls immigration in a country.
Immigration Law and a country's Nationality Law, which regulates citizenship issues, are
connected insofar as foreign nationals are concerned. Immigration Law as it relates to a nation's
residents is governed by international law. The International Covenant on Civil and Political
Rights of the United Nations is pertinent in this regard. The primary international body in the
topic of migration is the International Organization for Migration. To aid those who had been
displaced by the Second World War, it was first established in 1951 as the Intergovernmental
Committee for European Migration. This organisation is dedicated to supporting humane and
organised migration for everyone's benefit.

(A) Contemporary laws

Part II of the Constitution deals with citizenship particularly Article 5 to 11, which define a
citizen as someone having Indian ancestry in the family or someone who resides in India.
Foreigners' continued status as Indian citizens is addressed under Article 10, subject to any laws
passed by the legislature in the future. Dual citizenship is not recognized by the Indian
constitution, which only acknowledges one citizenship for the entirety of the nation.
Additionally, it states that a foreign national may become an Indian citizen by
naturalisation (having lived regularly in India for 14 years) and registering as a foreigner with
the FRRO (Foreigners Regional Registration Officer) or FRO (Foreigners Registration Officer).
The Indian law follows jus sanguinis (citizenship by blood) as opposed to jus soli (citizenship
by birth).

The Passport (Entry in India) Act, 1920, overseas nationals must obtain visas from the separate
Indian missions located in their countries of origin. The legislation also specifies which
documentation must be presented by foreigners in order for them to be permitted to enter and
cross Indian territory. Nepalese and Bhutanese citizens do not need visas to enter India. Visas
are issued for a six-month term. However, the concerned foreigners can get in touch with FRO
or FRRO to extend the same.

The government of India issues a variety of visas, including those for film, study, transit,
internships, business, and employment. These are available for both traditional and electronic

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visa applications. A unique Protected Area Permit (PAP) is required in addition to a

conventional visa for admission into some restricted regions of India.

A key piece of legislation governing foreigners' entry into and stay in India up to their departure
is the Foreigners Act of 1946. The Registration of Foreigners Act, 1939, and the Registration
of Foreigners Rules, 1992, essentially make provisions for the lawful registration of foreign
nationals who have overstayed their visas in the nation. A registration officer is required to
register you.

II. SIGNIFICANCE OF IMMIGRATION

There is a growing competition among industrialised nations to entice skilled labour from
emerging nations due to the labour shortage in several of them. It is thought that this trend to
import labour to address the labour deficit in industrialised nations presents both possibilities
and problems for the countries where the labour is coming from. India, a major exporter of
labour, must consider the potential long-term effects on both the Indian economy and the Indian
diaspora. Given the demographic changes and India's own role in developing human capital,
two scenarios for the country are plausible.

The productive population of India, or those between the ages of 15 and 60, will cease growing
in the upcoming years, stabilise at 64 percent of the overall population from 2025 to 2050, and
then decline to 62 percent of the total population in 2050, says the World Population Council
in 2008.2 If the current pace of migration out of the nation does not decline, it may result in a
scarcity of skilled labour in India as well. Currently, the government is concentrating on the
quick advantages of immigration. However, the emigration trend reveals that the migrants are
high-skilled workers who are already in short supply, such as academics, scientists, engineers,
physicians, and management and IT experts. This might result in a loss in productivity.
Additionally, there will be a significant teacher and researcher deficit, which will lead to low-
quality pupils graduating from educational institutions.

According to the second scenario, China and India would both become significant global
players with a significant effect on the geopolitical environment. India is in a good position to
take the lead in technology in the ensuing decades. The country is predicted to rise as a result
of rising military capabilities, rapid economic growth that is sustainable, and a significant
demographic dividend. Its chances in the upcoming global economy may be improved by
knowledge and technology involving the confluence of nano, bio, information, and material

2
Jaspreet Singh Gulati and Naman Pareek, “The Issue of Illegal Immigration and Laws in Relation and Critical
Analysis of Indian Problem”, Vol 4 Issue 3, International Journal of Law Management & Humanities

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technologies. A significant increase in financial resources for the social sector, particularly for
research and education, would assist India in overtaking other countries as the world's greatest
producer of knowledge workers.

The two hypothetical situations that have just been presented are based on current indices of
economic performance and development potential. Nothing is certain to occur. However,
forecasts offer material for thought and aid in going forward with some level of anticipated
consequences. Therefore, if projections are based on reliable empirical indicators, they should
be accorded the weight they deserve in policy considerations. India's immigration strategy
should thus be based on key statistics with significant social and economic implications.

III. HISTORY OF IMMIGRATION IN AND AROUND INDIA

India was born under a refugee crisis and as it grappled with Partition in its early years. The
Dalai Lama and his disciples introduced the first ethical challenge to the movement in the late
1950s. India protected them, but it came at a high political price. The choice aided in the nascent
nation's entry into a brutal conflict with China. Jawaharlal Nehru's sense of justice served as a
major inspiration for the moral act of providing asylum for Tibetans. India learned from the
experience to balance friendliness with political realities.

In 1971, 10 million refugees, largely Hindus and members of minorities who had suffered
genocide, arrived from East Pakistan, posing a much, far bigger difficulty. India has always
kept her doors open for those in distress, whatever the price, whatever the burden and Indira
Gandhi swore to defend them. She started a regime transition after visiting all the major cities
in the world and winning the support of the international media. When India's army did the
partition of Pakistan, a large number of refugees came home, and Bangladesh was created.

When Bhutan evacuated its Lhotshampa minority in the late 2000s, forcing them to trek via
India to join their camps in Nepal, this unique strategy was on display. Many people choose to
remain in India.

IV. ILLEGAL IMMIGRATION

It is difficult to subject India's inhabitants to a standard differentiation based on their outer
appearance or country of origin in such a varied nation. Since, India is so ethnically diverse,
with individuals from Bangladesh to Portuguese, it has a great sense of acceptance among its
citizens. India is a nation that always seeks peace and tranquilly, and it abides by U.N.
regulations governing foreign relations. However, it has been noted that there is a significant
influx of immigrants from Bangladesh who come to this country in search of easy, affordable,

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and accessible jobs as labourers, housekeepers, and rickshaw drivers. On the other hand, there
is little information available on illegal immigrants, and the Bangladeshi government offers no
legal assistance.

Therefore, the Indian government is responsible for handling the illegal immigration. Under
this criterion provided by the Foreigners Act, 1946, which is the country's governing law,
leaving a country for economic reasons is not considered to be a refugee, as is the case for the
majority of Bangladeshis living in India. Therefore, it is vital to handle this group of individuals
differently. This is an important reason to look into Bangladesh's illegal immigration problem
and it further necessitates the introduction and enforcement of national regulations on refugees.

India does not have any rules or regulations governing the status of those seeking asylum or
who are refugees. Actually, the 1946 General Foreigners Act governed these individuals. In
most circumstances, recognised refugees in India do not have the freedom to move about freely
or the ability to work. According to Indian law, anyone entering the country without the proper
papers indicating authorization runs the possibility of being deported. Only particular refugee
groups, such as Tibetans and Tamils from Sri Lanka, are officially recognised by and get direct
assistance from the Indian government. Some refugees, including those fleeing Afghanistan,
Iraq, and Somalia, must ask UNHCR directly for a "determination of refugee status." For this
purpose, individuals must visit the UNHCR office in New Delhi, where the UNHCR determines
if they meet the criteria.

The Rohingya refugee crisis is a recent issue that India had to deal with. India formally rejected
their admission for this reason, causing a worldwide outcry. It is high time for a nation like
India to develop a proper legal framework to deal with the influx of immigrants through illegal
means and should become a signatory to the 1951 Refugee convention and its 1967 protocol by
passing the Asylum Bill, which has been proposed by Shashi Tharoor in the Lok Sabha. There
were no hardened barriers, and the flow of Rohingya was constant.

V. CONCLUSION
M.P. Shashi Tharoor submitted a bill in the Lok Sabha that aims to create an effective
mechanism to safeguard asylum seekers and refugees via the use of the legal system. He stated
that the Asylum Bill, 2021 would provide a legislative framework for deciding on asylum
requests, as well as rights and duties resulting from that status and issues related to it.

The proposed law aims to take into account India's international duties, the Constitution's
guiding principles, and the country's present refugee policy. The bill states the asylum seekers'
status as refugees and their rights within the nation are clarified and uniformed by the provisions

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of the bill. Additionally, it aims to change the ambiguous and arbitrary system that too
frequently causes injustice to a population that is extremely vulnerable.

The measure also aims to strike a balance between state security objectives and humanitarian
concerns, giving the government more control and accountability over how refugees are
managed.

In the statement, Tharoor outlined the bill's justification by explaining that the problems that
might occur when dealing with a large inflow were brought into striking contrast by the
Rohingya tragedy and all nations, including India, should now revaluate their existing
preparation and response to mass migrations and refugee crises.3

India is the epicentre of the South Asian region's refugee flows and is home to more than two
lakh refugees. According to the bill, it has served as a haven for refugees from nearby nations
including Tibet, Bangladesh, Sri Lanka, Afghanistan, Myanmar, and Nepal. As a result, it
becomes imperative to investigate India's immigration laws and practises in great depth.

In truth, the bill is a great start and it should be embraced, but there is much room for
improvement. The bill introduced by Tharoor is almost a carbon copy of an earlier one from
2006. But a lot has occurred in the past ten years, not the least of which is the migrant crisis in
Europe, which has important lessons to teach about managing mixed flows and refugees.

However, Tharoor's Bill is unaware of it all. The biggest let-down is that it doesn't contribute
anything new. In reality, Tharoor's Bill undermines the previous 2006 plan in one important
way. He limits the protection from deportation to refugees who are already in India, leaving
those at the border susceptible to denial. The Bill also lacks provisions for diversified asylum,
methods for handling mixed flows, safeguards against statelessness, prohibitions against
militarization, and models for refugee administration. Therefore, the Parliament needs to
critically analyse the bill and related issue and should come up with a suitable legislation.

*****

3
PTI, “Tharoor introduces bill in LS seeking establishment of system to protect refugees & asylum-seekers”, 4th
February, 2022, The Indian Express

© 2023. International Journal of Law Management & Humanities [ISSN 2581-5369]