This article is written by Dhawal Srivastava, from the Rajiv Gandhi National University of Law, Punjab and edited by Neha Mallik. In this article, the author has made an exhaustive analysis of immigration law, the job and significance of immigration lawyers in India.
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Immigrants are way more beyond the word that they symbolize; they are mothers and fathers, ambitious young adults far away from their families for better education, professionals looking forward to kick-start their career in a foreign land, couples willing to commence their new matrimonial journeys, people who seek refuge and asylum in a land they believe can protect them from the prosecution they were subjected to in their homelands. They are adaptable, ready to accept an alien land and its norms. The primary intent of immigrants is to settle down in a foreign country as its permanent resident or naturalised citizen, specifically due to political, economic, religious or other related issues. However, this purpose of theirs is guided and regulated by an elaborate legal framework, specific to individual countries, in order to maintain law & order and not compromise its national interests.
What are the immigration laws in general?
Immigration laws refer to such rules and regulations which are specifically aimed at governing immigration in a country. For foreign citizens, these laws are linked with country-specific citizenship laws, unique for every nation. Besides domestic laws, international law also overlooks matters relating to immigration; the United Nations International Covenant on Civil and Political Rights (UN-ICCPR) is important in this regard. The apex international body directing migration issues is the International Organization for Migration, which was established in the year 1951 and was particularly associated with European Migration, with the aim of helping stranded or victimised after the culmination of the Second World War. However, a basic difference that exists between an immigrant and migrant is that while the former would have been a migrant before, the latter might not necessarily become an immigrant. The main purpose of immigration laws is to facilitate foreigners to acquire permanent residency and naturalization as citizens in a country.
Immigration laws in India
India is a vibrant country which is home to diverse cultures, beliefs and communities. It is thus an attractive place for immigrants from across the world. The greatest challenge for consideration of immigrants to any host country is the acquisition of citizenship and other fundamental rights and freedom granted to its citizens.
As far as the subcontinent is concerned, the primary source of legal structure pertaining to immigration is the Constitution of India:
- The Indian Constitution lays down for unitary or single citizenship throughout the length and breadth of the country, that is, no federal citizenship is required for residents of different states constituting the Union of India unlike the system in the United States of America.
- Part II of the Indian Constitution, in particular Articles 5 to 11, deals with the citizenship provisions for permanent settlement in India, defining a citizen as one domiciled in India or being of Indian origin through familial lines. Articles 5 to 9 deals with the determination of the status of Indian citizenship at the commencement of the Constitution; Article 5 stipulates three conditions for those persons at the beginning of the enforcement of the Constitution for becoming a citizen of India:
- Having been born in the Indian territory.
- Parents have been born in Indian territory.
- Who had been the resident of India for a minimum of five years before the Constitution came into force.
- Article 6 provides for citizenship rights to people having migrated from Pakistan to India while Article 7 for those having migrated from India to Pakistan.
- Article 8 deals with the citizenship rights of those people who are of an Indian origin and have been living in some other foreign country.
- Article 10 with the continuation of these foreigners as Indian citizens while Article 11 is about the powers vested to the Parliament of the country with regards to legislating on issues pertaining to citizenship.
- The Indian Constitution also provides for seeking citizenship through the process of naturalisation (residing in India for fourteen years). Registration of Foreigners with the Foreigners Regional Registration Officer (FRRO) or Foreigners Registration Office (FRO) is also constitutionally enshrined.
Other Immigration laws in India
Three other laws that primarily deal with immigration in India are briefly discussed below:
- The Passport (Entry in India) Act, 1920 provides for the obligation of the foreigners to procure visas from the respective Indian missions situated in their native countries. The law also stipulates what all documents are supposed to be submitted by the foreigners in order to be granted the right to travel through and across the Indian territory.
- Visitors from Nepal and Bhutan do not require visas within India.
- Visas are granted for a period of six months. However, for extension of the same, FRO or FRRO can be contacted by the concerned foreigners.
- The types of visas issued by the Government of India include film visas, student visas, transit visas, intern visas, business visas, employment visas etc. These can be applied for as both electronic and traditional visa applications.
- For entry into certain restricted areas in India, a special Protected Area Permit (PAP) is mandatory in addition to one’s standard visa.
- The Foreigners Act of 1946 is a pivotal law dealing with the arrival and residence of the foreigners in India until their exit from the country.
- The Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1992 basically provisions for the legal registration of those foreigners who have outstayed their specified visa period within the country. The registration must be done with a registration officer.
How to become an immigration lawyer in India?
- In order to become an immigration lawyer in India, it is necessary for the interested candidate to attend law school and complete either a five-year integrated course of law, offered by the reputed National Law Universities, government and other private institutions for pursuing law right after the completion of intermediate school (+2 level) or a three-year LLB programmes offered by various prestigious governmental institutions and private colleges after the completion of an undergraduate degree.
- A specialisation in immigration laws of India, such as those that have already been discussed above in brief, is not offered by many universities as other fields such as criminal, constitutional, corporate law etc. are more sought after by students.
- However, interested candidates can enhance their skills and knowledge in and about immigration laws by pursuing internships under already established immigration lawyers or firms that look into the legalities of immigration in India. Internships are a better method of understanding and identifying one’s interests and learning practical skills about lawyering.
- Immigration lawyers can either practice independently or join a specialised firm dealing solely with immigration laws. They can also get themselves registered after clearing the Bar examination and start their individual practice or under a lawyer.
What does an immigration lawyer do?
The job of an immigration lawyer is to provide pragmatic and strategic legal advice on immigration in India. Immigration attorneys are primarily associated with the responsibility of assisting their clients on complex issues with regards to settling down as citizens of India. Whether they be an entrepreneurial enterprise planning to commence business here, a foreign-based multinational company with the intent of opening centres or branches in India or a family intending to start a new life in the country, immigration lawyers have a variety of clientele to serve and look into.
A good immigration lawyer, besides being well-versed in the law, is also supposed to have an understanding of the nuances and technicalities of various sectors such as financial, creative, media, technology amongst many others. They provide end-to-end sponsorship, visa support and an elaborate immigration compliance aid to their clients.
While some firms tend to cater to all kinds of clients, certain immigration law firms are client-specific; solely dealing with business-related or family-based immigration, as both require, besides the intersecting common procedures, certain specific or additional procedures based on the nature of immigration.
Some specific duties of immigration lawyers in India include:
- Providing support and assistance to their clients in the procedural complexities of the application and documentation required for obtaining Indian citizenship under the various qualifications and conditions laid down in the Indian Citizenship Act.
- The immigration lawyers are supposed to be trained or adept in the process of documentation and various other compliance-related responsibilities.
- Immigration lawyers also help in the preparation and the submission of complete and valid documents of their clients with the concerned governmental authorities.
- The role of an immigration lawyer is most well known with regards to the issuance of visas and other related work. They aid their clients in the filing and applying of the OCI or Overseas Citizen of India cards, long-term visas, visitor visa, ‘x’ visa, dependent visa, medical visa, exchange visa, entry visa, student visa, tourist visa, spouse visa, fiance visa, medical representative visa, employment visa, work permit, a multi-entry visa, business visa and many more.
- The people applying for immigration services are very vulnerable to being victims of fraud and other illegal activities. They end up getting hoaxed by gangs and other criminals who capitalise on their lack of knowledge and sometimes, a desperation to escape their homelands and settle in foreign countries with hopes of a better future. Immigration lawyers also help immigrant applicants by providing opinions on cases of fraud and other related lapses.
- Immigration procedures get complex especially in cases of families or employers looking forward to citizenship. Immigration lawyers help resolve problems related to family or employee based naturalization and immigration sponsorships in such cases.
- Besides filing of the applications, the job of an immigration lawyer is also to draft, review and finalise petitions and applications before different concerned law courts, commissions, forums and other institutions or authorities for the registration of an Overseas Citizen of India or OCI person in consonance with the registration and immigration laws of the country.
- Immigration lawyers also represent their clients before courts, forums, tribunals and other competent authorities in matters related to immigration and associated issues.
- Immigration lawyers also advice and opinionated on all the queries arising out of the immigration procedure, visa refusals and other bureaucratic and procedural problems acting as an impediment to their client’s application.
The need for immigration lawyers in India
According to the Pew Research Organization, India is one of the world’s top destinations for international migrants. World’s twelfth largest immigrant population is based or resides in India, consolidating up to about 5.2 million people, as of the records of the year 2015. India is a recipient of the immigrant population mainly hailing from its neighbouring countries; Bangladesh, which has a contributory share of 3.2 million people, Pakistan, from where 1.1 million people hail (mostly the religious minorities such as Hindus, Sikhs and Christians), Nepal, with almost six lakh people and Sri Lanka, with almost 2 lakh people immigrating to India for a better economic and social life. Besides, India, which is one of the fastest-growing economies, is eyed by entrepreneurs and businessmen from across the globe for starting their trade or translocating to the country due to various factors such as a young population and cheap labour amongst many reasons. These only warrants for a growing trend, interest and a boom in the field of immigration law and other related services in the country.
All these situations voluminously speak for the need and importance of immigration lawyers in the country who are skilled and experienced to cater to the various needs of different clients and their demands. Immigration policies, rules and regulations are one of the first laws reviewed or altered by States in cases of any international aggressions or emergencies. These are also very technical and beyond the scope of comprehension of the laymen population who seek to envisage a better future in a foreign land. Thus comes into play the role of immigration lawyers who help such people pursue their ambitions.
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