The notification introduces a series of restrictions that dramatically curtails the rights and liberties of OCIs in India.

Narendra Modi at the 2014 edition of Pravasi Divas, a celebratory day to mark the contribution of the overseas Indian community towards the development of India. | AFP

In a stunning development for Overseas Citizens of India, the Ministry of Home Affairs issued a notification on March 4 dramatically altering the compact between OCIs and the Indian state. This notification, which is issued under Section 7B of the Citizenship Act, 1955, supersedes three earlier notifications issued on April 11, 2005, January 5, 2007, and January 5, 2009, which laid down the rights of the OCIs.

Apart from humiliating and illegally classifying OCIs as “foreign nationals”, the new notification introduces a series of new restrictions that dramatically curtails the rights and liberties of OCIs in India. These restrictions include a requirement for OCIs to secure a special permit to undertake “any research”, to undertake any “missionary” or “Tablighi” or “journalistic activities” or to visit any area in India notified as “protected”, “restricted” or “prohibited”.

In addition, the notification now equates OCIs to “foreign nationals” in respect of “all other economic, financial and educational fields” for the purposes of the Foreign Exchange Management Act, 2003 although past circulars by the Reserve Bank of India under FEMA will hold ground. This reverses the position that has held for the last 16 years wherein OCIs were equated to Non-Resident Indians rather than “foreign nationals” for the purposes of their economic, financial and educational rights.

OCIs can however continue to purchase land (other than agricultural land), pursue the profession of medicine, law, architecture and accountancy and seek parity with Indian citizens with regard to airfares and entry fee to monuments and parks. OCIs can also continue to seek enrolment in Indian educational institutions on par with NRIs but not for seats reserved exclusively for Indian citizens.

Judicial defeats

Most of these new restrictions have likely been inspired by the defeats suffered by the government in various cases filed by OCIs before the judiciary. Take for example, the new requirement for OCIs to apply for a special permit to undertake any missionary activities. This restriction has been introduced to undercut a judgment by Justice Vibhu Bakru of the Delhi High Court wherein he came down heavily on the Ministry of Home Affairs for cancelling the OCI card of an American-Indian doctor on the grounds that he was engaged in “evangelical and subversive activities” while offering free medical services to the needy and the poor in Bihar.

In that judgment, Justice Bakru made it clear that there was no restriction preventing OCIs from engaging in religious activities.

Similarly, the restrictions on OCIs competing for seats reserved for Indian citizens is meant to undercut a judgment of the Karnataka High Court by Justices BV Nagarathna and NS Sanjay Gowda declaring that OCI students will be treated as Indian citizens for the purposes of admission to professional courses.

Lastly, the Ministry of Home Affair’s assertion that OCIs are foreign nationals and not Indian citizens is most likely inspired by ongoing litigation before the Delhi High Court wherein an OCI has sought a declaration from the court that OCIs enjoy fundamental rights just like Indian citizens.

The requirement for OCIs to take a special permit to engage in journalistic activities has likely been motivated by right-wing ideologues like Subramaniam Swamy who has been targeting journalists like The Wire’s Siddharth Vardarajan because of their foreign citizenship. There are several other next generation OCIs who work as journalists in India and whose future will now be under a cloud if the Ministry of Home Affairs decides to deny them the required permit to continue working as journalists in India.

Long-term visa programme

This notification by the Ministry of Home Affairs is not surprising. For some time now, the Ministry of Home Affairs has dedicated its efforts to reduce the concept of OCIs to a glorified long-term visa programme rather than implement it as a dual citizenship programme, as was the intent of Parliament when then Home Minister LK Advani piloted the Citizenship (Amendment) Act, 2003, through Parliament.

The “Statement of Objects & Reasons” accompanying this Bill, which lays down the intent of the government at the time of introducing a bill in Parliament and which can legitimately be used by the judiciary to discern the legislative intent, stated the following:

  “Subsequently, the High Level Committee on Indian Diaspora constituted by the Central Government, inter alia, recommended the amendment of this Act to provide for the grant of dual citizenship to persons of Indian origin belonging to certain specified countries. The Central Government has accordingly decided to make provisions for the grant of dual citizenship.”  

Advani in his introductory speech had clarified once again that the entire purpose of the Bill was to introduce dual citizenship for the Indian diaspora. It is therefore disingenuous for the Ministry of Home Affairs to now claim through a recent notification the claim that OCIs are foreign nationals. This argument is all the more absurd when viewed in light of the fact that the phrase OCI literally has the phrase “Indian citizen” in its title.

Lastly, it bears noting that the entire concept of OCIs was brought through the Citizenship Act, 1955, which is a legislation specifically meant to regulate the concept of Indian citizenship. There are separate laws like the Foreigners Act, 1946 and the Foreign Exchange Management Act, 2003, which deal exclusively with foreigners and their rights in India.

The fact that Parliament sought to locate OCIs in the Citizenship Act and not the Foreigners Act or FEMA is sufficient proof that Parliament wanted OCIs to be Indian citizens.

Correct conceptualisation

Rather than declaring OCIs as foreign nationals, the Ministry of Home Affairs should recognise OCIs as a new class of Indian citizens who enjoy a different set of rights from Indian citizens holding Indian passports. The rights to which OCIs are not entitled are mentioned in the Citizenship Act. This list includes the right to hold public office or voting – the idea being that OCIs are excluded entirely from the political sphere of citizenship.

Unfortunately, Parliament delegated to the government of India via Section 7 B of the Citizenship Act, the power to decide the remaining rights of OCIs through notifications. While the legality of such delegation is suspect, there is also no doubt that no government can deprive any class of citizens of their fundamental rights.

To argue against such a basic proposition by declaring an entire class of citizens as foreign nationals, as has been done by the Ministry of Home in this present case, is quite simple wrong in law. Parliament can lay down the criteria for citizenship but once it decides to bestow citizenship on any category of persons, not even Parliament can proceed to deprive that class of citizens of their fundamental rights.

The very idea of fundamental rights in India is that every person is born with these rights and the Constitution merely recognises such rights.

If the Home Ministry fails to withdraw its most recent notification, it may just be the end of India’s short-lived experiment with dual-citizenship. It will be difficult if not impossible for the Narendra Modi government to reclaim the trust of OCIs after this latest notification unless it acts swiftly

www.samigration.com

The Department of Home Affairs (DHA) says that it is working with the Council for Scientific and Industrial Research on a biometrics system that is close to being finalised.

Briefing parliament virtually on Wednesday, the department said the biometrics system will form part of an identity management policy that aims secure the identity of a child when about six hours old.  It added that the associated policy will be approved by 2023.

“The documentation of children remains an issue that the department address through various campaigns including the registration of birth within 30 days and late registration of birth,” the DHA said in its presentation.

“There should be no child who is undocumented in this era. The Department of Home Affairs is moving towards a National Identification System, which caters for the registration of all citizens and non-citizens.”

Draft policy 

A draft identity management policy published by the Department of Home Affairs in January 2021 provides additional information on how the National Identification System will work.

“It is currently possible for anyone who has not applied for an ID to successfully claim and use the identity of another person who has also not applied for an ID,” the policy statement said.

It explained that this is possible because the biometrics of South African children are not captured after birth.

“The DHA currently has no way to reliably verify that a child who presents a birth certificate as proof of identity during interactions with the department – for example, when applying for an ID for the first time – is truly the person whose birth the certificate is meant to certify.

“Any child can lay claim to the identity of another child and such instances have been recorded.”

To address these and other issues, the DHA has made the following recommendations:

• Records of persons throughout their lifespan including the capturing of the biometrics of children at birth. Where impossible, the biometrics of a parent must be linked to the birth certificate of a child;

• ID numbers based on parents. Ideally, these numbers should also be linked to their parents’ identity numbers and mother’s biometric data;

• Re-registration of children at five years of age and when possible, the biometrics of a child must be collected at birth.  A combination of different biometric data for children will be considered with options such as the photograph of the ear;

• Recognition of other sex/gender categories on identity documents

www.samigration.com

The opposition Democratic Alliance has tabled its Ease of Doing Business Bill which is aimed at cutting and reducing red tape associated with doing business in South Africa.

The private member’s bill specifically aims to deal Regulatory Impact Assessments (RIA) and the impact and cost that new regulations will have on the economy.

“Following a study into the lack of understanding of the full cost imposed by regulatory measures and the impact thereof on the economy, the South African cabinet in 2007 decided that a need exists for the consistent assessment of the socio-economic impact of regulatory measures.

“The presidency consequently issued guidelines on the conducting of Regulatory Impact Assessments in 2012, which guidelines provided for a Central Regulatory Impact Assessment Unit to be housed in cabinet under the deputy president in order to coordinate the development of Regulatory Impact Assessments.

“However, no clear compulsory measures were provided,” the DA said.

Why these measures are needed 

Assessing the impact of regulatory measures, from policy through to delegated legislation, before a final decision is made to implement that regulation will improve the effectiveness, efficiency and impact of government interventions, the DA said.

It said that conducting an evaluation of regulatory measures allows:

• The integration of multiple policy objectives and ensuring linkages of policies such as industry, competition, trade, SMME and B-BBEE, thus promoting early coordination of policies;
• The enhancement of competitiveness by reducing regulatory burdens;
• The increase of transparency and consultation when developing regulatory measures;
•  The increased involvement and accountability of decision-makers at the highest political levels when developing regulatory measures; and
• A tool for policy monitoring and an evaluation benchmark for monitoring and evaluation processes although it is not synonymous with programme/project monitoring and evaluation.

“Specifically for developing countries red tape impact assessments have the potential to contribute to poverty alleviation by reducing business entry costs and creating a regulatory environment that is friendly to small businesses, thus driving economic growth,” it said.

It added that a number of countries including the United States, the Czech Republic, Republic of Korea and Mexico have similar rules in place.

“It is necessary for South Africa to entrench this duty in legislation as it allows for certainty, uniformity and the establishment of a central RIA unit.

“Legislation also allows for the involvement of parliamentary oversight over this important function.”

The DA said that the draft Bill provides for:

• The establishment of a central administrative unit to manage the RIA process. It also provides for the fiduciary duties, functions, powers and reporting duties of the RIA unit. One of the functions of this unit will be to provide for assistance to businesses in overcoming red tape;

• The evaluation of new regulatory measures. In this regard, the draft Bill places responsibilities on ministers, members of Parliament, parliamentary committees and self-regulatory bodies when developing regulatory measures. It also provides for the mapping of such regulatory measures to determine whether a RIA is required and if so, the process to be followed. The draft bill will also provide for instances that are exempted from these processes;

• The evaluation of existing regulatory measures by Ministers and self-regulatory bodies. It further requires the development of a plan to reduce red tape and the costs thereof in existing regulatory measure

www.samigration.com

Following the President’s announcement that the country has moved to Alert Level 1, we have decided that more services will be resumed tomorrow, Thursday, 04 March 2021. The Citizenship service remains temporarily unavailable.

Online services through eHome Affairs and our partner banks will be resumed on Monday, 08 March 2021.

The following services were offered during Adjusted Lock Level 3;

• Births Registration
• Re-issuance of Births Certificates
• Late Registration of Birth (LRB) for learners and pensioners only;
• Death registration
• Applications temporary Identity certificate (TIC)
• Collection of Identity cards or documents
• Applications and collection of passports for those who are exempted to travel
• Applications for identity (Smart ID) Cards or documents for matriculants only  

In addition to those mentioned above, we are resuming the following services during Lock Level 1;

• Re-issues of Smart ID Cards and identity documents
• Registration and Solemnization of Marriages
• Amendments and rectifications
• Late Registration of Birth (LRB) for all categories
• Applications and collections of passports for all categories

www.samigration.com

Home affairs minister Aaron Motsoaledi has appointed a team of experts to review several categories of permits and visas issued since May 2004, when the Immigration Act came into force, until December 2020 to determine if they were granted regularly.

All permanent residence permits, corporate permits (especially in the mining industry), study visas, work permits for professionals, citizen naturalisation and retirement visas issued over this period will be examined.

Motsoaledi told parliament’s home affairs committee on Friday that some of these permits had been granted under dubious circumstances.

The review was prompted by findings of the department’s anti-corruption unit and immigration branch, which Motsoaledi said raised “disturbing issues”.

The minister said it was offensive that wealthy individuals wanted certain favours from the permit section. “We want to pay attention to them, to see how they managed to obtain their permits,” Motsoaledi said.

The terms of reference for the team of experts, which includes forensic investigators, an advocate and a lawyer, have been developed and it has been given three months to produce a draft report of its findings. The investigation would also highlight system deficiencies in the department.

Motsoaledi also told MPs that the department was drafting guidelines on the use of discretion by the minister in approving the early naturalisation of people as instructed by public protector Busisiwe Mkhwebane. This was to ensure there was a uniform approach to exceptional circumstances such as granting the naturalisation to an investor who could help boost the economy, an academic or a sports star. The guidelines would be finalised by March 15.

Mkhwebane’s report was prompted by former home affairs minister Malusi Gigaba’s use of ministerial discretion to grant SA citizenship to members of the Gupta family in 2015. 

Mkhwebane found that Gigaba had not abused his powers in granting the Guptas early naturalisation but failed to declare this to parliament within the required period of 14 days. She also found that Gigaba granted the citizenship without proper validation of the requisite exceptional circumstances.

She found that the discretion given to ministers to grant early naturalisation was too wide and there needed to be guidelines. She also ruled that the minister not only inform parliament who had been granted early naturalisation but also provide all the documentation on which this decision was based to ensure transparency.

Motsoaledi said draft amendment regulations were also being developed to detail what information an applicant for early naturalisation needed to provide in a prescribed form to motivate their application. Normally a person becomes eligible for SA citizenship through naturalisation if they have held a permanent residence permit for at least five years, among other circumstances.

The draft regulations will be published for public comment and Motsoaledi expects the final regulations to be gazetted by June.

Home affairs director-general Livhuwani Makhode told MPs the department’s human resources unit was dealing with 10 of the 16 officials implicated in the Gupta saga, the other six having left the department. The officials allegedly failed to exercise due diligence in verifying the accuracy of the information in the motivation for the early naturalisation of the Guptas.

Samigration.com