Let us first understand the concept of immigration and laws synonymously. Immigration is the movement of people, either collectively or individually, who take permanent residence in a foreign country. Immigration laws are the laws that govern this entire system of migration of people in a country. These laws are made majorly considering the consequences for the people who reside in the country after immigrating. A systematized approach to function and control the foreign inflow is necessary to uphold the principle of sovereignty of the nation and to peacefully maintain a necessary procedure amongst the immense diversity of population and immigrants.
Immigration occurs due to numerous causes, such as education or economic pursuits, favouring environmental factors, or internal conflict within nations, leading people to escape events like terrorism, persecution or human rights violations.1 History has already been quite conspicuous in flaunting the dramatic events that have contributed to altering the immigration laws of several countries. However, the cyclic creation of these events has vastly contributed to the advancement of immigration laws across the globe.
At the beginning of the 19th Century, immigration litigation grew sedulously in the United States until it came to an abrupt ending in World War I. It could be a result of the utmost disarray and homesickness of those times that perhaps aided the native lands in bringing the ‘lost’ and ‘wandering’ back home. Furthermore, The Immigration Act of 1924 of the United States established an annual quota, fixed as 150,000 in 1929, creating the national origins system and administering it with the responsibility of characterizing immigration policy for the next 40 years. The quotas of the countries were articulated directly depending upon the comprehensive measure of the origins of the people of that nation in 1920. The quotas eventually reduced the flow of immigrants from southeastern Europe to a large extent in favour of the countries of northwestern Europe.
This system was later abolished in 1965 in consideration of a predominantly first-come, first-served policy. Inculcation of countries outside of the western hemisphere was finally initiated, and a yearly structure of immigrant visas of approximately 170,000, with 20,000 allowed to one nation. This new policy revolutionized the entire archetype of immigration in the United States. It was the beginning of a new era, and the arrival of the non-Europeans formed the new dominant immigrant group. Asia, Latin America, the Caribbean, and the Middle East diversified the population of the United States now more than ever. With time the world was becoming more compassionate toward refugees.
In the 1980s and 90s, immigration laws evolved, granting amnesty to illegal aliens, raising admission limits, and creating a system for validating refugees.2
Proceeding further in the timeline, post World War II, immigration was mainly the result of the refugee movement during the 1950s and 60s, a phase that also began the reign of the freedom and sovereignty of the many colonized nations.
The United Kingdom had then brought up the 1948 British Nationality Act to privilege the citizens in the former colonial territories of the Commonwealth with the right of British nationality. Immigrants were majorly responsible for resuscitating the European Infrastructure after World War II, however, they were also marginalized, leading to the isolation of ethnic groups and minority communities. Some states dealt with this social exclusion by limiting future immigration, whereas others approached it more inclusively, as an incorporation of the varied cultures into one articulated understanding of citizenship. Critics of this approach highlight that the states justify the repression of differences and assimilation of diverse cultures in the name of the state. Sarah Parry of the Lecturer, School of Social and Political Science, University of Edinburgh hence concludes that “Immigration is therefore closely related to citizenship and the social and political rights to which citizens of a state are entitled”.3
The Immigration laws of India have also had quite a turbulent ride throughout its record of immigration laws. The Foreigners Act of 1864 was the first enactment made for dealing with foreigners. It specified the numerous procedures, such as the expulsion of foreigners and their arrest, detention pending removal, and other explanation of required conduct for the same.
The Imperial Legislative Assembly, during the Second World War, implemented the Foreigners Act of 1940, under which the very crucial concept of “burden of proof” was introduced. Section 7 of the Act stated that it was the responsibility of a person to prove that he was not a foreigner.
The Foreigners Act of 1946, which repealed the 1940 Act, was enhanced with more powers to deal with all foreigners. Apart from providing the appropriate definition of a ‘foreigner’, it empowered the government to make various provisions relating to prohibiting, regulating, or restricting the entry of foreigners into India. However, the most significant concept that led to such an impeccable implementation of this law was that the ‘burden of proof’ was on the person, not the authorities. Moreover, it was praised by the ultimate judicial authority of India, the Supreme Court.
In 1964 came the Foreigners (Tribunals) Order, which has the jurisdiction to decide whether a person is a foreigner as per the Foreigners Act of 1946. The tribunal, which has powers similar to that of a civil court, gives a reasonable opportunity to the person alleged to be a foreigner to produce evidence in his favour before passing its order.
Failure to recognize the concept of “burden of proof” as imperative for the better implementation of immigration laws led to the downfall of The Illegal Migrants (Determination by Tribunals) Act, 1983, as it put quite a burden on the authorities to prove the illegality of the migrants. It brought back the Foreigners Tribunals constituted under the Foreigners (Tribunals) Order, 1964.4
Immigration is a subject of both intimate and public matters in our lives. This movement of people has led to a vast exchange of ideas. Identity is both lost and gained. Culture is both lost and gained. Witnessing the same things through an individual with a completely different nurturing and lifestyle is a pleasantly overwhelming emotion to have felt.
The shift in these laws can directly be correlated to the change of causes concerning time, and hence will continue similarly in the coming decades. However, uncertainties are bound to come. Such times gasp for strength from unity from our humanity. Humankind is both frantic and stable. This paradoxical exuberance drives us towards stability as there’s a balance of ideas. All we need to do is preserve that balance.
1. Migration Global Issue, United Nations available at https://www.un.org/en/global-issues/migration
2.Native Americans, Britannica available at https://www.britannica.com/place/United-States/Native-Americans#ref742504
3Immigration, Britannica, available at, https://www.britannica.com/topic/immigration
4Soibam Rocky Singh, “What are the laws in place to tackle illegal non-citizens?”, The Hindu NOVEMBER 24, 2019 00:09 IST
