THE SHIFT IN IMMIGRATION LAWS ACCROSS THE GLOBE
Author: Shreya Dubey, II year of B.A.,LL.B. from The Maharaja Sayajirao University of Baroda
Approached by the carriers of both anguish and prosperity, Immigration has existed throughout the centuries. This global social movement has hence evolved and transitioned accordingly, with the age, time and places it has existed, and so has it’s laws. This article shall unravel and illustrate the major shift in immigration laws of a few leading countries across the globe, and further outline it’s impact it has on the nations.
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. The Immigration laws are the laws that governs this entire system of migration of people in a country. These laws are made majorly considering the consequences of the people who would reside in the country after immigrating. A systematic operation to function and control the foreign incomings is necessary, it upholds both the principle of sovereignty of the nation, and simultaneously peacefully maintains a necessary procedure regulating the immense diversity of population and immigrants.
Immigration occurs due to numerous causes, such as education or economic pursuits, favouring enviromental factors, or internal conflict within their nations leading them to escape events like terrorism, persecution or human rights violations1. History has already been quiet conspicuous in flaunting the dramatic events that have contributed in altering immigration laws of several countries. However the idea that should be recognized here is that there is a cyclic creation of these events is what has vastly contributed in advancement of immigration laws across the globe.
THE COMMENCEMENT OF IMMIGRATION LAWS
Beginning with the the 19th Century from the world’s most popular nation, the United States of America. Immigration litigation grew sedulously in the United States until it came to an abrupt end in World War 1, which could be inferred to be as 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 to be as 150,000 in 1929, creating the national origins system, 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 that origins of people of that nation in 1920.
The quotas eventually drastically reduced the flow of immigrants from southeastern Europe 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. Incultation of countries outside of western hemisphere was finally inaugurated, and an yearly structure of immigrant visas of approximate 170,000, with 20,000 was allowed to any one nation. This new policy revolutionised the entire archetype of immigration in the United States. This was beginning of a new era, the arrival of the non-Europeans now formed the new dominant immigrant- group. Asia, Latin America, the Caribbean, and the Middle East diversified the population of United States now more than ever2.
With time the world was becoming more compassionate towards refugees. In the 1980’s and ‘90s immigration laws were evolved, granting amnesty to illegal aliens, raising admission limits, and creating a system for validating refugees. Proceeding further in the timeline, post World War 2, immigration was largely the result of refugee movement during the 1950s and 60s, a period 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 which privileged the citizens in the former colonial territories of the Commonwealth the right of British nationality. Immigrants were majorly responsible in resucitating the European Infrastructure after World War 2, however they were also marginalised, leading up to the 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 miscallaneous cultures into one articulated understanding of citizenship. 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 ROUTE OF THE INDIAN IMMIGRATION LAWS
The Immigration laws of India too have had a quite a turbulent ride throughout it’s record of the evolution. Foreigners Act, 1864, was the first enactment made for dealing with foreigners which specified for the numerous procedures such as expulsion of foreigners and their arrest, detention pending removal, and other explanation of required conducts for the same. The Imperial Legislative Assembly, during the second World War, implemented the Foreigners Act, 1940, under which the very crucial concept of “burden of proof” was introduced, of which Section 7 of the Act stated that a question of nationality of a person was their responsibility to prove that he was not a foreigner.
The Foreigners Act, 1946, by repealing the 1940 Act, was enhanced with greater powers to deal with all foreigners. Apart from appropriately providing the definition of a ‘foreigner’, it empowered the government to make various provisions for prohibiting, regulating or restricting the entry of foreigners into India. However the most significant concept that led such impeccable implementation of this law, was that the ‘burden of proof’ lies with the person, and not with the authorities. Moreover, this had also been praised by the ultimate judicial authority of India, the Supreme Court. In 1964, came the Foreigners (Tribunals) Order, which had the jurisdiction to decide whether a person is a foreigner within the ambit of the Foreigners Act, 1946. The tribunal, which has powers similar to those of a civil court, gives reasonable opportunity to the person alleged to be a foreigner to produce evidence in support of his case, before passing its order.
Then came the The Illegal Migrants (Determination by Tribunals) Act of 1983. This Act led the deterioration of the implementation of immigration laws. Failure to recognize the concept of “burden of proof” as imperative for prosperous implementation of immigration laws led to the downfall of as it put quite a burden on the authorities to prove illegality of the migrants. This brought back the Foreigners Tribunals constituted under the Foreigners (Tribunals) Order, 19644.
This movement of people has leads to such a vast exchange of ideas, culture and knowledge, and thus inculcates a fresh breathe of perspective. However, these laws have also provided pillars of strength when mankind gasped for durability and unity in times of war. Mankind’s constant progression as creators and destroyers is what has ultimately led to such developments of global immigration laws, and hence this paradoxical exuberance is what drives us towards evolution of the global immigration laws.