Introduction

Time and again we have seen a rise in the population worldwide. Ever wondered what might be the reason behind it? The reason may differ from cultural backgrounds, lack of family planning, and sex education. But under the umbrella of the afore mention reasons is the population of the undocumented migrants residing within the country border.

An undocumented migrant is a person who trespasses across the national border of a country without a visa or passport, in a way that violates the immigration laws of the concerned country. Mostly people illegally migrate to another country is due to the geostrategic location and the economic position of the country. The most commonly seen pattern of undocumented migration is from countries with low socio-economic level to comparatively developed ones.

So the question here arises, are these who are born within the country’s border shall be conferred the entitlement to be the legal citizens of the country? Furthermore, are there any laws that protect the sovereignty of these individuals who are born? 

Hence, the case thus presented shall cast light over the topic Laws concerning children of undocumented migrants.

Laws Governing the Children of Undocumented Migrants in Different Countries

India

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 pathways are predominantly regulated by the Indian Constitution and the Citizenship Act, 1955.

India does not appear to have a system of permanent residency or 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. More recently, the government of India has introduced a program for permanent residency status for foreign investors.

Under current law, Indian citizenship is largely determined by the rule of jus sanguinis that means citizenship of the parents as opposed to jus soli that is place of birth, and India provides for single citizenship for the whole of India.

In India, an undocumented migrant or their children can apply for Indian Citizenship, through the process mentioned in the Citizenship Act, 1995. The act provides that a migrant from a neighboring country requires having a residence in the territory of India for 11 of the previous 14 years to have citizenship in India.

On December 11th, 2019 The Citizenship (Amendment) Act, 2019 was passed by the Parliament of India and it amended the Citizenship Act, 1955. That Act provides that “ Any Persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who entered into India on or before the 31st day of December 2014 and who have been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act”

Therefore, it means that from persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh and Pakistan are excluded the definition of undocumented migrant in the Citizenship Act. 

United Kingdom

The United Kingdom of Great Britain and Northern Ireland (UK) is the collective name of four countries: England, Wales, Scotland, and Northern Ireland. The four separate countries were united under a single Parliament in London, known as the Parliament at Westminster, through a series of Acts of Union. 

The United Kingdom has a robust system of laws relating to immigration and citizenship and it actively enforces these laws. It has recently moved to a points-based migration system to help retain talented migrants in the country. Entry through many of the points-based system options provides a path to citizenship if a continuous residence requirement is met.

Citizenship is not automatically granted to babies born in the UK. British citizenship is only granted to babies if their birth father or mother is a British citizen or settled in the UK. The UK follows the principle of jus sanguinis, which provides that the nationality of a child is the same as his or her parents. The British Nationality Act 1981 allows children born in the UK on or after January 1, 1983, to parents who were not British citizens or lawfully settled in the country to register to become British citizens.[1] Children are eligible for citizenship if they are ten years of age or older and have lived in the UK, lawfully or otherwise, for the first ten years of their life, spending no more than ninety days outside the UK each year. This citizenship is available to any child born in the UK and does not end at the age of majority (eighteen years of age), provided the applicant meets the criteria of being born in the UK and continuously residing there for the first ten years of life. 

Australia

Australia’s immigration and border protection policies are based on a visa system in which noncitizens lacking a visa are deemed unlawfully present and must either obtain a proper visa, leave the country, or be subject to detention. Australia’s refugee and the humanitarian program is also structured as a visa system.

With regard to the citizenship of children who were born in Australia, prior to August 20, 1986, such children automatically became Australian citizens. Children who were born in Australia on or after August 20, 1986, are automatically citizens only if they have at least one parent who is an Australian citizen or permanent resident. Children born in Australia who does not have at least one parent who is an Australian citizen or permanent resident but who spend the first ten years of their life in Australia are also deemed, Australian citizens.

South Africa

South Africa’s immigration system is controlled by the Immigration Act and its subsidiary legislation; the Immigration Regulations. An alien who is not a permanent resident in South Africa may be admitted to the country only if he or she is issued a valid visa. South Africa has various classes of visa. The acquisition of South African citizenship is governed by the 1995 Citizenship Act and its subsidiary legislation, the Citizenship Regulations. The Department of Home Affairs administers the Citizenship Act and the Minister of the Department has wide discretionary powers on an array of issues, including with regard to the granting of citizenship to a foreigner; however, all his decisions are subject to judicial oversight.

Children of undocumented migrants are not entitled to permanent residency. Under South African law, residency may be established through one of two possible means: direct residency or residency on other grounds. A child is eligible to acquire direct residency if he/she is less than twenty-one years of age and the child of a citizen or a permanent resident. In this case, the permit would expire upon the child reaching the age of twenty-one and failing to apply for confirmation. A child may also acquire direct residency if he/she is the child of a citizen. In addition, a child may be able to establish residency if he/she is the relative of a citizen or permanent resident within the first degree of kinship. The source of entitlement to acquire permanent residency in all these circumstances is a relationship to a person whose presence in South Africa is legal.

Canada

Immigration to Canada is predominantly regulated by the Immigration and Refugee Protection Act, 2001 (IRPA), and nationality is governed by the Citizenship Act. Under the law, there are a number of pathways to citizenship, namely through birth, descent, adoption, and naturalization of permanent residents. Canada accepts several categories of immigrants for permanent residence.

There are a number of persons who are considered inadmissible in Canada, including failed refugee claimants, individuals who have overstayed their visas, and individuals who have entered the country illegally. Currently, there is no dedicated program to grant the children of undocumented person’s legal status or a pathway to citizenship.

Conclusion

The laws of the majority of the countries do not provide for legal status or a pathway to citizenship for the children of undocumented persons, and consider those who entered the country illegally inadmissible in general. However, many countries are more lenient in regard to providing opportunities to stay and work for those who were born inside the country or were brought to the country as a child by undocumented migrant parents. India’s latest Citizenship (Amendment) Act, 2019 has provided that any person belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan are shall not be treated as an undocumented migrant. India also provides with a law which helps the undocumented migrants and their children to get citizenship of the country. The law says that a migrant from a neighboring country requires having a residence in the territory of India for 11 of the previous 14 years in order to have citizenship in India.

Despite the fact that most of the developed countries do not have any special laws that concern the children’s of the undocumented migrants, however, with the speed of development of laws throughout the world and growing awareness of Human Rights, there is hope that soon every country will come up with laws concerning the children’s of undocumented migrants.

REFERENCES

  1. https://www.loc.gov/law/help/undocumented-migrants/india.php
  2. https://www.loc.gov/law/help/undocumented-migrants/uk.php
  3. https://www.loc.gov/law/help/undocumented-migrants/australia.php
  4. https://www.loc.gov/law/help/undocumented-migrants/southafrica.php
  5. https://www.loc.gov/law/help/undocumented-migrants/canada.php
  6. https://www.loc.gov/law/help/undocumented-migrants/index.php

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