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Future of Indian Immigration

Written by: Poorvi Chothani - Esq. (LL.M.-University of Pennsylvania, USA, Qualified as a Solicitor in England and Wales. Admitted to the Bar Council of Maharashtra and Goa and the New York State Bar) is the founder of LawQuest, a general law firm headquartered in Mumbai, India
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Globalization, which helps businesses expand into new international markets, is eroding nation’s virtual borders through the Internet and blurring its geographic borders as the global mobility of resources and people is on the rise. The increased movement of people into and from India is shaping India’s immigration and visa requirements. Before we can imagine what the future of Indian immigration will be, it is necessary to understand India’s background with regard to immigration and emigration.

History of Immigration

India has historically been a land of plenty and immigration has been driven by economic opportunities. Over the years, India has attracted several invaders that remained in India as “immigrants.” For instance, around 1500 BC, a group of people called Aryans from the Russian steppes, invaded the Indian subcontinent, and stayed on to dominate the native Dravidian people. These were followed by the troops of Alexander the Great, the Kushans from Bactria, the Moslem Sultans, the Persians, the Portuguese, the Moghuls, and finally the British who ruled India till it attained independence in 1947. In addition to invaders and migrants attracted by the riches of the country, throughout the history of India, scholars from far and near visited renowned seats of learning in their quest for knowledge. Many of these immigrants settled around centres of commerce and agriculture creating large pockets of urbanization. After 1947, when the British departed from India, few foreign nationals made India their new home and the few that did were mostly missionaries spreading their message.

Emigration from India

India went through phases of emigration under the British Rule. This trend continued in India which adopted socialistic policies that supported controlled economic growth. Under the British Rule, several Indians migrated to countries in the East and West Indies, Mauritius and to African countries as indentured labourers and as trading entrepreneurs, and to Australia as convicts (taken by the British). These emigrants stayed on to establish successful lives in the countries where they initially moved. Seeing this trend, more and more Indians voluntarily left their country in search of better opportunities overseas. In recent years, migration has been of primarily three types, family unification, professionals moving for career or business opportunities to the United States, the United Kingdom, China, Australia and Canada labourers and entrepreneurs moving to the Middle Eastern booming economies.

Recent Trends in Immigration to India

Post independence the main objective of the Government of India was to work towards the economic growth of the country, but in a protected environment. From 1950 till 1991 the economy of India was a ‘closed economy’ which meant that business activities were heavily regulated and controlled by government issued licences spawning the term “License Raj” to describe this period. Since then with the Government of India’s initiatives, the number of foreign nationals visiting India for business and pleasure has increased exponentially.

In the interim, a large number of foreign nationals visited India for pleasure; to visit the Taj Mahal and other heritage sites and places with some tourism value. Also, many Hippies visited Goa in India between the 1960s and 1980s and lived in communes for long periods contributing to the cultural evolution of this picturesque seaside town. During the License Raj, international travel to India for business was insignificant. In fact, India experienced a tremendous “Brain Drain,” the phenomenon as described by Dadabhai Navroji, a great entrepreneur in India as the best and the brightest of India including state educated engineers and doctors left the country to explore greener pastures. During this period, immigration came into the spotlight with the number of immigrants increasing. The Government of India perceived a need to create definite regulations with respect to Indian nationals living abroad (Non Resident Indians - NRIs).

It was in 1991 under the then Finance Minister, Dr. Manmohan Singh (the present Prime Minister of India) that the Government of India realized the need to adopt a policy of Liberalization, Privatization, Globalization (LPG). The Liberalization significantly reduced regulatory hurdles and minimized license requirements. Privatization of government entities reduced the role of the state and the public sector in business. Furthermore, globalization of trade made it easier for trans-national or Multi National Companies (MNC) to operate in India attracting entrepreneurs from all over the world. The flow of expatriates to India from the rest of the world is increasing exponentially every year, resulting in what is often termed, “Reverse Brain Drain.” These individuals including returning Indians who have lived for extended periods abroad, Persons of Indian Origin who are citizens of a foreign country and other foreign nationals. Except for the returning Indians, the others are here for temporary, albeit after extended stays here they rarely consider acquiring citizenship.

In addition, many Indians have traditionally followed a philosophy of “Atithi Devo Bhava,” the translation of which approximately means “Our Guest is Our God.” Visitors to the country would be considered guests of the country. In keeping with this, the Government recently launched its “Incredible India” campaign, to commemorate India’s 60 years of independence, in conjunction with the Ministry of Tourism’s “Atithi Devo Bhava,” campaign. This is with a view to establishing a positive image of the country internationally and attracting more business and visitors to India.

The grant or acquisition of Indian citizenship under the British kept evolving as the territories of British India increased. The policies were often changed to meet political and economic agendas. After independence, the laws were modified and enshrined in the Constitution of India and newly codified laws.

Citizenship of India

The right to Indian citizenship and the qualifying criteria are established under the Constitution of India and codified in the Indian Citizenship Act, 1955 (the Citizenship Act) as modified from time to time. The Constitution of India only recognizes Indian citizenship and does not provide for dual citizenship. The Constitution of India prescribes the manner in which Indian citizenship can be acquired. Indian citizenship can be acquired by birth , descent , registration , naturalisation , or by incorporation of territory. Certain eligible persons of Indian origin may be inducted as citizens of India by registration subject to discretionary procedures.

It is important to note that neither the Constitution of India nor the Indian Citizenship Act, 1955 recognize dual citizenship. But, the Citizenship (Amendment) Act, 2003 and the procedural Citizenship (2nd Amendment) Rules, 2004 provide for Overseas Citizenship of India (OCI) which grants special status, to eligible foreign nationals of Indian origin, subject to certain restrictions. OCI status enables eligible foreign nationals to visit India, work, study, stay or do business in India without a visa and offers certain other benefits. The OCI is often referred to as dual nationality but it does not actually confer nationality of India.

Indian Non-Immigrant Visas

The entry and movement of foreign nationals in India are regulated by several statutes, rules and regulations, with specific restrictions on the activities they can undertake in India. Most foreign nationals require visas with the exception of certain persons of Indian origin and visitors from Nepal and Bhutan, who enjoy significant freedom of travel into India.

Regulatory Framework

The Foreign Exchange Management Act 1999 of India (FEMA) , stipulates that foreign nationals or person resident outside India, are restricted from engaging in any employment, practicing any profession or carrying on any occupation, trade or business in India, without prior permission of the Reserve Bank of India (RBI), India’s central bank, if they wish to repatriate any money from India as foreign exchange. Indian firms and companies can engage foreign nationals on short-term temporary assignments without prior approval from the RBI. In addition, the entry, stay, movements and departure of foreign nationals into India are regulated by various Acts passed by the Indian Parliament and rules framed by the Indian Central Government departments from time to time. These include The Foreigner’s Act, 1946, The Registration of Foreigners Act, 1939 and The Citizenship Act, 1955 with allied rules and periodic amendments.

All foreign nationals who wish to come to India for employment or otherwise require a valid passport of their country and a valid appropriate Indian visa. India does not issue ‘Visas on Arrival’ to any foreign national; nor does it have any visa waiver program or any visa reciprocity schemes. However, in the case of emergencies or while in transit, certain foreign nationals are allowed to enter India under the Temporary Landing Facility or Temporary Landing Permit on arrival in India without a visa.

Foreign nationals are required to apply for a visa at an appropriate Indian Embassy or at the Indian High Commissions or Indian Consulate abroad, which has jurisdiction over the applicant’s place of residence. The application form is common to all visa categories and the applicant has to indicate on the form the type of visa he/she requires. Visas are available for single entry and multiple entries for periods ranging from six months to ten years, depending on the need and category. The various categories include tourist, employment, business, student, conference, research, missionary, journalist and entry visas. Moreover, there are special categories of visas like the transit visa and the temporary landing permit, which are granted in specific instances. A violation of visa rules, including overstay, indulging in activities beyond the scope of the visa issued, failure to register with the Foreigners Registration Office (FRO) are some of the offences that are treated very seriously and may lead to the imposition of penalties, debarment from future entry and even detention and imprisonment.

Recent Developments

Immigration and Commerce

The explosion of globalization, the Internet, technology and the progressive liberalization of the Indian economy have all contributed to increased travel to India. Information Technology (IT) and IT enabled services (ITES) have seen prolific growth of business, attracting venture capitalists and businessmen to India. India is considered as one of the prime countries in which the outsourcing industry that provides ITES is booming. A number of Business Process Outsourcing (BPO) facilities, faced with the lack of an employable workforce have hired foreign nationals especially from East Europe. In addition, as Indian BPO’s, and recently emerging Knowledge Process Outsourcing (KPO) and Legal Process Outsourcing (LPO) units seek to provide services to non-English speaking jurisdictions the need to higher multilingual professionals has arisen. Businesses in these sectors also have high level managers and professionals to introduce, among other things internationally accepted practices, assistance, knowledge transfer and trained local staff. The demand is partially met through recruitment portals on the Internet.

IT and ITES growth has triggered, a domino effect resulting in the growth of several ancillary industries and those that provide support services to these industries either directly or indirectly. Several of these industries have been recruiting foreign nationals, for instance the hospitality industry in India has seen premium hotels recruiting foreign nationals in senior management positions for the past few years. However, recently a five star hotel was known to recruit waitresses from abroad, which was unheard of in the past. One of the contributory factors for the recruitment of foreign nationals is the lack of qualified people in the country. Also, as Indians get savvy and acquire discerning tastes and with the number of expatriates traveling to and living in India, the industry has to strive to meet expectations and provide internationally accepted levels of quality and services.

Immigration and the Indian Entertainment Industry

India is the largest in the world in terms of the number of movies produced in the country . Indian movies traditionally contain high levels of drama, exotic song and dance sequences and a touch of the mystical. In keeping with this, Indian cinema recruits a large number of foreign nationals as dancers and to fill small support roles. Most of these dancers are in India on tourist visas; unfortunately, more often than not, these ‘dancers’ are unaware of the need to obtain appropriate visas and because they are offered ready money, often cash, they agree to work without work permits or appropriate visas. The most recent case in point is that of Negar Khan, an aspiring actress born in Iran, who acted in Indian movies while she was in India on a tourist visa. It was only when she came under the scrutiny of law that she was immediately deported to Norway in 2005.

It is important to note that, the employer does not usually face any strictures; it is the unlawful, expatriate employee who is penalized. The responsibility to comply with visa and registration regulations lies with the foreign national and violations can result in deportations and denials of future visa applications.
The rich culture and heritage of India has always attracted a large number of tourists. However, the potential of the tourism is essentially underestimated. The large cities and well know monuments attract their fair share of tourists but places like Goa are very popular holiday spots mainly because of its location and weather. There is significant interest from abroad to own homes or open businesses, often restaurants in Goa. A lot of foreigners come to Goa and stay there for extended periods, often unlawfully working as dancers in local restaurants and bars. These expatriates are in India on a tourist visa and violate the Indian immigration laws by accepting employment without an employment visa. The enforcement of immigration laws in India is not very stringent, but if the offenders are caught they are deported immediately.

Immigration and Foreign Students

The difference in the number of students going abroad to study compared to the number of foreign students coming to study in India is staggering. For example, more than 32,000 student visas for Indian nationals are expected to be issued in India for the full 2007 year as against 24,600 in 2006.” The number of Indian students going to the UK increased from less than 4000 in 1999 to about 19000 in 2006, and Indian students going to Australia have risen from 500 in early 1990s to nearly 30,000 in 2006-07. In addition there a few hundred Indian students going to study at universities in countries like Norway, Denmark, Sweden, Switzerland, Germany, Singapore and Russia. There are no official figures, but simple research reveals that there are at the most relatively small contingents of foreign students at various Indian universities pursuing specialized education on student visas. Students also take up internships with leading firms even with law offices, unheard of a few years ago. Many students are fascinated and extend their stay, with some even deciding to remain permanently in India. It is important to note that the process of changing a visa within India can be onerous and time consuming.

Immigration and Real Estate

Present Foreign Direct Investment (FDI) policy has a direct and significant effect on Immigration. FDI has seen significant increases through the Foreign Investment Promotion Board (FIPB) and the automatic route, requiring post remittance reporting to the Reserve Bank of India. The Indian Government in the pursuit of liberalizing the economy allows FDI in several sectors, and progressively includes more sectors. Currently, investment in the real estate sector is permitted through direct investments and indirect investments in real estate mutual funds. Foreign nationals or entities are prohibited from investing in plantations and agricultural land, but may invest in the development of projects pertaining to townships, residential projects, retail malls, commercial office projects, information technology parks, hotels and leisure resorts.

ince March 2005, a foreign national or entity may invest in real estate in India, under the automatic route, if the investment adheres to the certain guidelines.
With a view to encourage investments from foreign nationals of Indian origin and increase their participation in India’s economic growth the Government of India has introduced two new schemes which ease the travel and stay of eligible individuals. These two schemes are described below. Certain foreign nationals are allowed extended stay in India in connection with the investment in India.

Persons of Indian Origin (PIO)

Persons of Indian Origin (PIO) who hold the nationality of another country cannot travel to India on an Indian passport. They too will be subject to the same visa requirements as discussed above. However, PIO’s can presently apply for a PIO card at an Indian Consulate. Upon obtaining a PIO card, this individual would not have to obtain an Indian visa.

PIO cardholder is exempt from registration, if his/her stay in India does not exceed 180 days. However, if the stay exceeds 180 days, the PIO’s Card holder has to register, at the very latest, within 30 days of the expiry of 180 days with the concerned Registration Officer.

"Person of Indian Origin" means a foreign citizen not being a citizen of Pakistan, Bangladesh and other countries as may be specified by the Central Government from time to time if:
(i) he/she at any time held a Indian passport; or
(ii) he/she or either of his/her parents or grand parents or great grand parents was born in and permanently resident in India as defined in the Government of India Act, 1935 and other territories that became part of India thereafter provided neither was at any time a citizens of any of the aforesaid countries (as referred to in 2(b)above; or
(iii) he/she is a spouse of a citizen of India or a person of Indian origin covered under (i) or (ii) above.
A PIO Card is valid for fifteen years. PIO card holders cannot exercise any political rights, visit restricted/protected areas without permission, or undertake mountaineering, research and missionary work without additional permission.

Overseas Citizenship of India (OCI)

From December 2005, the Indian Government implemented the law regarding registration of eligible foreign nationals as Overseas Citizenship of India (OCIs). Eligible foreign nationals include, among a few other categories, certain Persons of Indian Origin and individuals whose parents or grand parents migrated from India after 26th January, 1950 and their minor children. This is subject to the applicant being a citizen of a country which allows dual citizenship in some form or the other. This provision is extended to such citizens of all countries other than those who had ever been citizens of Pakistan and Bangladesh.

The following categories of individuals may apply for OCI registration:
(a) any person of full age and capacity –
i) who is a citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or
ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or
iii) who is a citizen of another country, but belonged to a territory that became a part of India after the 15th day of August, 1947; or
iv) who is a child or a grand-child of such a citizen; or

b) a person, who is a minor child of a person mentioned in clause(a)

Provided that no person, who is or had been a citizen a citizen of Pakistan, Bangladesh or such other country as the Central government, may by notification in the Official Gazette , specify shall be eligible for registration as an the overseas citizen of India.

Registration as an OCI is a one time process that grants all the benefits that are available to PIO Card holders with some additional benefits. These include a life long multi-entry, multi-purpose visa to visit, live or work in India and are not subject to travel restrictions within the country or employment visa requirements that apply to PIOs. An OCI is not required to register with an Foreigners Regional Registration Office (FRRO) for any length of stay in India. An individual registered as an OCI for 5 years and who has lived in India for one year is eligible to gain “full” Indian Citizenship. To avail of “full” Indian citizenship, a foreign national will have to relinquish his foreign nationality.

Present Trend of Immigration in India

Even though India seems to be a booming economy there are a few drawbacks that do not support optimum economic growth. Improvement in the education system, trading and infrastructure are seen as the most essential catalysts to India’s economic growth. In the meantime a large portion of India’s population remains uneducated and unskilled. For that reason it is important to note that immigration in fields employing unskilled and industrial labor will not be readily permitted as these industries form an important source as the uneducated or under-educated sections of India depend on such jobs.

On the other hand, the demand for visas from highly skilled, qualified professionals and entrepreneurs is on the rise. This is evident from the fact that the Indian consular posts in the U.S. have outsourced visa processing to Travisa Outsourcing Inc., seemingly in an attempt to effectively process the larger volumes of applications.

Future of Immigration in India

Present immigration laws in India do not place any numeric restrictions on the inflow of people with visas. Furthermore, there are no restrictions on the duration of residence with a spouse who is on a long term employment visa. However, it is important to note that if an accompanying spouse wishes to be employed in India or conduct any other activities which would require a visa, the accompanying spouse will need to obtain an appropriate, independent visa. In addition to that the Indian immigration laws need to be modified to address the status of unlawful residents in the country, as there are a number of refugees and asylums seeking shelter in India even though Indian statutes consider all foreign nationals who enter India without visas as illegal migrants.

Despite some challenges, there is no doubt that India is one of the fastest growing economies in the world. Known for its hospitality and almost open-door policies, India, even with a population of more than a billion (1,129,866,154 as of July 2007 ) welcomes migrants who not only wish to invest their money in the growing markets of India but also seek jobs requiring highly skilled and qualified professionals. This trend will continue till business opportunities abound and till India becomes self sufficient with qualified personnel. The first category will continue to grow for at least the next several years unless the Indian economy sees a sudden, unexpected downturn. It also appears that the second category will not see a fall in demand in the immediately foreseeable future because the requirement is much higher than the supply. India will continue to reap the economic benefits of globalization while the growing number of youth will have to be educated and career plans to face the competition from abroad.

New immigrants in the country, comprising for the most part those on temporary stays or people with long term business plans tend to congregate in well urbanized areas. Choices range from the established financial hub, Mumbai to newly developing centres like Ludhiana and Chandigarh in the North, Surat, Nagpur in the West, the states of West Bengal and Orissa in the East and Visakhapatnam and Kochi in the South. Choices are driven by the prosperity of the city, governance, business environment, infrastructure and quality of life. These trends fuelled further by several factors including inward investment into the country, a growing affluent population, propelling economic growth further, will attract more migration.

What is also changing is the profile of the expatriate seeking to work or do business in India. The first wave, in the 1990’s included personnel in connection with establishing businesses for large multi-national corporations and PIO’s. Subsequent trends indicated that large numbers of PIO’s, after gaining citizenships in other countries, were deciding to work as high level professionals or conduct business in India. These were well established entrepreneurs or professionals. Recent trends indicate that the profile of those coming to India, especially since late 2004 includes young professionals, some seeking to gain experience here, some coming to re-connect with their Indian roots, and others being deployed to set up business ventures on behalf of small and medium size enterprises. The last trend is expected to continue while the demand to qualify as PIO’s and OCI’s is likely to increase manifold.

In addition, if the immigration system in India is abused or misused the Government of India might introduce more stringent criteria and processes, leaving less to the discretion of visa officers. At present the discretionary powers and lack of consistency among consular offices produces conflicting determinations. This might result in reduction of the number of visas issued, but at the same time it might result in welcome consistency, enabling clients to gauge the outcome of applications.

Disclaimer
The information is not a comprehensive consideration of the subjects discussed and is intended to provide general information. Readers should not conclusively rely on the information as legal advice and should seek independent counsel before any action is taken with respect to these or other specific issues.

Immigration Laws in India
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.

NRI Grievances Redressal Mechanism in India
The Ministry of Overseas Indian Affairs was created by the Government of India for developing closer relations with the Indian Diaspora. As a result of this, the new initiatives for the diaspora have not only become feasible but noe they can be easily followed up effectively in quick time.

Regulations Applicable To Foreigners In India
The extent Acts dealing with entry, stay and exit of foreign nationals in the country are:
i. Passport (Entry into India) Act, 1920
ii) Foreigners Act, 1946
iii) Registration of Foreigners Act, 1939

The author can be reached at: lawquest@legalserviceindia.com / Print This Article

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