This article is written by Vatsal Bhargava from the Institute Of Law, Nirma University, Ahmedabad and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders)
The term immigration dates back to the 17th century. Immigration is the means by which individuals become permanent residents or citizens of a different country. Immigration has historically benefited states in terms of social, economic, and cultural values. Many contemporary states are defined by a vast diversity of cultures and ethnicities that have developed from previous periods of immigration. Immigration in the post-World War II era was largely a result of the refugee movement that followed the war, as well as the end of colonialism in Asia and Africa in the 1960s. The number of people migrating from these places to historic colonial capitals like the United Kingdom and France had also increased. Working in the industry, health care, and transportation, the immigrants played a critical part in reconstructing the infrastructure of Europe following WWII. They did, however, face prejudice, which led to the marginalization of ethnic groups and minority communities in some countries.
Some states attempted to address immigrant’s socio-economic alienation by limiting future immigration, while others adopted an approach that encouraged the fusion of multiple cultures into a single cohesive notion of citizenship.
Immigration in India and the laws
Historically, India has been a land of wealth. Several invaders have stayed in India as immigrants over the years. Scholars from distant lands visited renowned centres of learning in their search for knowledge throughout India’s history. Many of these immigrants chose to reside near commercial and agricultural hubs, resulting in vast urbanised areas. Some foreigners made India their new home after the British left in 1947.
According to the Census of 2011, India is home to a population of 5 million immigrants. According to data from the United Nation’s Department of Economic and Social Affairs Population Division, India’s immigrant population fell from 7.6 million in 1990 to 5.1 million in 2019. Although the number of refugees and asylum seekers decreased between 1990 and 2019, they now account for a growing share of India’s total immigrant population.
Immigration from India has also been significant. Several Indians moved to the West Indies, Mauritius, and African countries as contract labourers and commercial entrepreneurs during British rule. These immigrants stayed to build prosperous lives in the nations to which they had emigrated. As a result of this phenomenon, an increasing number of Indians have willingly departed the nation in quest of better possibilities abroad. In recent years, migration has generally taken three forms: family unification, professional immigration for job or business possibilities.
Immigration laws vary from country to country and from time to time, depending on the political situation. International law governs a country’s immigration policy for its citizens. Immigration Law affecting a country’s citizens is regulated by international law. Obtaining citizenship or nationality in a different country is the prime objective of immigration.
The author will slightly touch upon the purpose and primary focus of these laws. We will not be discussing the entire legislation. Citizenship and nationality law in India is primarily governed by the provisions of the Constitution. The Indian Constitution establishes a single citizenship system for the entire country. Articles 5 to 11 of Part II of the Indian Constitution deal with citizenship issues. Articles 5 to 9 of the Constitution define a person’s status as an Indian citizen at the time of inception of the Constitution.
The Immigrants (Expulsion from Assam) Act, 1950, was enacted to enable certain immigrants to be expelled from Assam. The Immigration (Carriers’ Liability) Act of 2000 was passed to address the problem of carriers bringing in large numbers of passengers without proper travel documents in violation of the Passport Act of 1920. The Bureau of Immigration is in charge of immigration in India.
The Bureau of Immigration is in charge of immigration services at India’s major international airports as well as foreigner registration in five major cities. Foreigners Regional Registration Officers are field officers in charge of immigration and registration activities in Delhi, Mumbai, Kolkata, Chennai, and Amritsar (FRROs). Apart from the FRROs in charge of immigration and registration in the five cities stated above, the concerned District Superintendents of Police serve as Foreigners Registration Officers (FROs) in all of the country’s states.
Foreigners entering India are required to obtain visas under the Passport (Entry in India) Act, 1920. The act also specifies which documents must be submitted during their legal travel in order to gain entry to the country.
The Foreigners Statute 1946 governs foreigners’ admission and stay within Indian boundaries until they leave.
The Registration of Foreigners Act 1939 and the Registration of Foreigners Rules 1992, requires some foreigners to register with the Registration Officer if they stay longer than their visa period permits.
Hardships, identity crisis and socio-economic mobility
Settling in another country brings a number of difficulties irrespective of your background. All immigrants around the world experience it in one way or the other. The main challenge is the language barrier, which impacts one’s capacity to communicate with others. Every aspect of life in which we connect with people is influenced by our ability to communicate. Learning a native language is vital for everything from education to jobs. Immigrants are among the persons most likely to encounter workplace discrimination. Furthermore, many immigrant workers are not entitled to the same labour and safety safeguards as native-born workers enjoy. Health treatment, legal representation, and access to mental health and social services are among the most difficult services to obtain. Once again, language might be an underlying aspect of the problem. Immigrants’ access to insurance and health care has been hampered by policy changes implemented by states. Financial constraints, discrimination, and the threat of deportation are some of the major challenges. This has sparked concerns about immigrants’ ability to take advantage of several basic services.
Numerous immigrants claim that the cultural differences are the first thing they notice when they arrive. This might include everything from social customs to more significant matters like gender roles, religious diversity, and heritage, all of which can be substantially different in a new country. Even the well settled immigrants experience significant cultural and communication problems. In many cultures, fear and suspicion of immigration have fostered the creation and spread of cultural myths.
Identity crisis has a huge impact on mental health. Immigrants face a variety of challenges that can adversely impact their mental health, including the loss of cultural norms, ritual practices, and support networks. Cultural adjustment and changes in identity makes them continue to live in their past. Bereavement can be triggered by the loss of one’s social structure and culture. The loss of basic sociocultural characteristics such as language, attitudes, values, social structures, and support networks occurs as a result of immigration.
Identity crisis vs cultural diversity
The existence of various cultural groups within a society is referred to as cultural diversity. It includes enhancing the knowledge, skills, and behaviours required to fully recognize and support cultural differences. Everyone is included and it is ensured that everyone can participate on their own. The similarity or dissimilarity between the culture of origin and the culture of settlement, linguistic and social support networks, and acceptability by the majority culture all influence identity crisis in immigrants. If a person feels alienated from his or her culture and unrepresented by the majority culture, he or she develops feelings of rejection, detachment, and low self-esteem.
Immigrants struggle to get recognition of the proper expertise or skill that is required from them by the employers. Many immigrants don’t have basic market knowledge or access to social networks that can help them find a job. Discrimination towards people of immigrant background can play a part. The barriers of origin and skill diversity to immigrant socioeconomic opportunity reveal that access is restricted. The linguistic, educational, and cultural assimilation play a vital role in participation and economic success.
Plight of immigrants in india and government’s response
According to Migrant Integration Policy Index, India was ranked the lowest out of the total 52 countries for migrant inclusivity for 2020. There are no policies in the country that take into account the special needs of immigrant children. The states require immigrants to provide proof of residence that mostly is, in the form of a domicile certificate and school transfer certificate of the destination country, which they find difficult to obtain because they are no longer domiciles of state of origin and received their education there itself. Voting rights and right to form political parties is restricted to Indian citizens.
Although immigrant families have been able to take advantage of RTE policies, their children frequently suffer discrimination and cultural challenges in Indian schools. To cover these critical policy gaps, refugee communities such as the Rohingya rely on charitable efforts and the work of non-governmental organisations (NGOs).
Ayushman Bharat, is only available to families in lower-income groups, as outlined by the 2011 socioeconomic and caste census, and thus excludes immigrants. However, Integrated Child Development Services (ICDS) schemes provide additional nutrition, pre-school education, vaccinations, and health check-ups to children aged 0-6, can normally be obtained without documentation of identity.
Immigrants continue to experience challenges of inclusion in different aspects of daily life, affecting their employment opportunities, access to justice, and educational opportunities. Nearly 300,000 refugees live in India. However, India is neither a signatory to 1951 United Nations Convention nor the 1967 Protocol. India also lacks a national refugee policy and law.
Any number of refugees can be declared illegal immigrants by the government, and they can be penalized as trespassers under the Foreigners Act and the Passport Act. The Citizenship Amendment Act of 2019 discriminates refugees on the basis of religion when it comes to granting them citizenship in India.
In the example of Sri Lankan Tamil refugees, India’s treatment of the refugees is very clear. Plenty of them are in camps in Tamil Nadu. The government allows their children to attend school and enables them to pursue jobs. Following the end of the civil war in Sri Lanka in 2009, India encouraged people to return by using voluntary repatriation approach, in which people decide for themselves in cooperation with UNHCR. UNHCR has issued guidelines emphasizing the importance of fostering an enabling environment for voluntary repatriation and mobilizing support for returnees.
The UNHCR: rules and directives
The Office of the High Commissioner for Human Rights aims to promote, safeguard, and secure the human rights of all immigrants, regardless of their status, with a special emphasis on those who are most vulnerable to human rights violations. OHCHR advocates for a human rights-based strategy to immigration that prioritizes the immigrant in immigration policies and governance, and attempts to ensure that migrants are included in all national action plans and policies. UNHCR works to address migration challenges that affect refugees and other people who fall under asylum seekers, refugees, and stateless people. It focuses on promoting stronger governance and greater compliance of the universal nature of human rights, including the rights of all people regardless of their legal status, in ways that strengthen international refugee protection policies and rules. Their goal is to ensure that migration-management strategies take into account immigrant’s protection.
In terms of a number of rights, the 1954 Convention specifies minimum standards of treatment for stateless people. The right to education, employment, and shelter are a few among them. The Convention also ensures that stateless people have access to identification, travel papers, and administrative support. The 1961 Convention works to reduce statelessness. It creates an international framework to ensure that everyone has the right to live in freedom. It calls for states to include safeguards in their nationality rules to prevent people from becoming stateless.
The United Nations Convention on the Rights of Immigrant workers 1990 is a comprehensive international treaty that protects the rights of migrant workers. It underlines the link between human rights and immigration. The Convention strives to protect migrant workers and their families; its presence establishes a moral standard and serves as a guide and encouragement for each country’s support for migrant rights. The Convention attempts to ensure that migrants and nationals are treated equally and have the same work environments. The convention is based on the principle that all migrants should have access to a basic level of protection.
The International Covenant on Civil and Political Rights (ICCPR) aims to safeguard the civil and political rights. On December 19, 1966, the United Nations General Assembly adopted it. It is also called the international bill of Rights. The ICCPR Rules urge countries which have ratified the Convention to protect and safeguard basic human rights like the right to life and human dignity, equality before law, freedom of expression, assembly, freedom of association, freedom of religion, freedom of privacy, freedom from torture, ill-treatment and arbitrary detention. The Covenant has a total of 173 parties as of September 2019.
Immigrant rights and state sovereignty
There is one concern that preserving human rights and putting the individual at the core of migration issues might jeopardise state sovereignty, or that firmly enacting migration governance may be damaging to state sovereignty in some way. Existing international law sets no obligations on governments regarding how to manage their immigration flows or how to create migration policies. It only provides a foundation for long-term migration regulation that respects individuals while also acknowledging government’s authority over non-nationals.
Migration governance mechanisms that protect immigrant’s human rights can help states strengthen their sovereignty by safeguarding safety and public order. Regulating worker migration is critical for the state’s stability and prosperity, particularly in a globalised society where labour mobility, or the movement of individuals across state borders for work, is a crucial aspect. This is due to the fact that migrant workers make a significant contribution to human development of the regions in which they work by filling providing necessary skills.
States should provide healthcare facilities to migrants as well as their own citizens to comply with international human rights law. The World Health Organization (WHO) has identified that adopting an inclusive approach to migrant’s right to health care enhance their health, reduce disparities, facilitate integration, and contribute to social and economic growth. Poverty, prejudice, language, cultural differences, administrative barriers, and legal status are all risk variables that impact the health of immigrants, as per WHO.
Immigration has a profound impact on who we are as a society. It affects legislations, regulations and cultures. It determines cultural identity. Who we shall become as humans is determined by how we treat the persons who wish to be a part of our communities in the future. Contemplating the future of migration is essential, particularly at present, when we are witnessing the largest migration of people occurring. There are as well growing inequalities within countries, environmental crisis and a growing connectivity of knowledge that is invariably controlled by the government. Human adaptability to sociological, economic, and political obstacles, has relied heavily upon immigration. Immigration will continue to be a global issue in the future. Both people and the regions affected by immigration suffer significant impacts. Migration can lead to inclusive and sustainable development in both origin and destination nations while also benefiting immigrants and their families provided that it is supported by suitable policies.
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