The Minor’s Right of Citizenship and OCI Card
OCI, or Overseas Citizen of India, cards are an immigration status category established by the Government of India in 2005 that allow qualifying foreign nationals the right to stay in India for an unlimited period of time, access to economic-related activities (including the ability to own a business in India), and certain other benefits afforded to Indian citizens. The status was first made available to citizens of 16 countries in 2005, and now is available to citizens of approximately 171 countries. OCI status does not confer Indian citizenship, for which individuals must apply separately.
Individuals with OCI status must be careful to maintain their status after it is granted, as if it lapses, the individual will be treated as an ordinary foreign national upon reentry into India. While OCI status may be applied for, granted and maintained by (and is therefore held by) an individual, those interested in applying for OCI status for children must also consider the applicable legal status of the parents of the child .
A grant of OCI status to a minor child is strictly on the basis of the eligibility of the child, and will not invalidate or affect the visa or stay status of the parent(s) if granted. However, obtaining OCI status for a minor child may indirectly impact the legal status of parents. For example, in order for the OCI application to be granted, Indian authorities must typically find that both parents of the minor child consent to the grant. It is rare but not uncommon for parents to disagree about the grant of OCI status to a minor child. In addition, in cases where OCI status is obtained while minor children are relatively young, parents should be aware that it will likely not be appropriate for the child to travel alone to India (i.e., without both parents) until after they reach the age of majority in India.
Parental Eligibility for Minor’s OCI Card
In terms of the above guidelines, only one parent needs to apply for OCI on behalf of a minor child for which OCI is being sought. It is not necessary for both parents to apply for OCI on behalf of the minor child. Specifically, there is no requirement that for parents of Indian origin, one parent should have served as an Indian government employee overseas to apply for OCI on behalf of their minor child. Nor is there any requirement for parents of foreign origin to be naturalized Indian citizens by renunciation of the foreign passport for the minor child’s OCI application.
Further, in view of the applicable legislation, an Indian citizen who has become a citizen of another country by naturalisation or by making a declaration of renunciation of citizenship will still be considered an Overseas Citizen of India (OCI) if the citizen was an Indian before such renunciation. As long as the Indian parent has not assumed the citizenship of the foreign country by swearing an oath of allegiance, the foreign country of the other parent’s citizenship will not prevent the minor child from being eligible for an OCI card based on the grounds that one of the minor child’s parents is an Indian citizen.
It is our understanding that basic documentary requirements include the birth certificate of the minor child and a copy of the Indian passport with evidence of the OCI holder parent’s relation to the child i.e. marriage certificate.
Rights and Responsibilities of Parents
Parents of Minor OCI Card Holders: Parental Responsibilities and Rights
When dealing with the legal consideration of a minor child who holds an OCI card, the issue of parental rights and responsibilities must be addressed in respect to the child’s OCI card.
Travel with Children
There is no official policy by the Government of India prohibiting or denying travel with one parent. In practice, parents have traveled with minor OCI holders in and out of India without issues.
Living in India
As mentioned previously, an Indian citizen who obtains OCI status does not lose his or her Indian Citizenship. A minor minor child is recognized as a minor in India until the age of 18. Therefore, Indian law governs the legal capacity of a minor child. With respect to legal guardianship and administration of a child’s estate, the Guardians and Wards Act of 1890 governs.
‘The Guardian and Wards Act 1890’ was introduced on 24th of July 1890. Under the Guardian and Wards Act, a minor can be adopted only under a previous order of the court. No person shall be appointed as guardian of a minor by any person other than his or her father and mother without the prior approval or order of the court. The natural guardian of a minor, boy or an unmarried girl, is the father, and after him, the mother. A guardian appointed by the Will of a deceased father or mother of a minor can be dismissed by the court. The guardian is not entitled to custody of the minor if he or she has broken a bond with the minor. The court may appoint a guardian for the Indian property of a minor.
The Hindu Minority and Guardianship Act of 1956 provides guidance, but it is not a comprehensive list, on the type of guardianship which governs guardianship of a minor child who is a member of the Hindu religion, sect, or cultural group.
‘The Hindu Minority and Guardianship Act 1956’ governs matters relating to the appointment of a person as a guardian of the property and the custody of a minor among Hindus. The affairs of a minor in respect of the custody of property and person will be governed by this Act. The persons, who are competent to be appointed as a guardian of person and property of the minor, are the following:
(a) Natural Guardian
(b) Testamentary Guardian
The person who has renounced the world, such as a Sadhu, Sannyasi, Bairagi or a Yati, or who is otherwise not competent to take care of the minors is not a "natural guardian". The father and mother are the joint natural guardians of a minor boy or an unmarried minor girl. Even if both the father and mother are dead, the surviving parent can be the natural guardian of the minor.
The minor therefore may have more than two guardians. In such case, guardianship shall be exercised by only one of the two guardians.
While both parents usually have equal guardianship terms, where a couple is divorced, the terms of guardianship may be apportioned in the Divorce Order. If the divorce Order provides custodial arrangements of the child to either parent, that parent may have priority in guardianship arrangements.
Mutual Understandings
Most married couples will have a mutual understanding between themselves and with respect to a third-party on the mutual guardianship of their child. That custodial parent may be acknowledged between that parent and any third parties—travel agencies, hotels, residential establishments etc.—it is recommended that the custodial parent carry a current passport with the child in same surname page to avoid any issues with regard to travel or entry into the country.
Any parent may obtain a passport for a child. The other parent will be responsible for signing relevant documentation to authorize the child’s issuance of a passport. To deal with any issues or concerns, the child’s passport application should include written consent of the non-applying parent. This is generally accepted practices, whether in the United States or in India. Written consent by a non-applying parent prevents the issuance of a passport where the specific purpose is to circumvent the other parent’s parental rights.
Legal Direction on Dual Citizenship and Nationality
A clarification regarding legal implications for parents if their minor child is considered a dual national. The card holder or their parent or legal guardian may have questions regarding the status of the minor child with respect to the Indian and foreign law in relation to such minor child becoming the citizen of a country other than India on or after May 26, 2010.
Section 3(1) of Citizenship Act, 1955 does not allow dual nationality where both the citizenships are based on birth or nationality i.e. the child cannot become a citizen of both India and of another country through birth. However, the law that will apply in determining the nationality in such cases would be that of the country of which that child is a citizen.
If an individual is a citizen of two countries by virtue of citizenship of one country passed on to that person by descent, it will be understood that if that citizen asks the second country to renounce his citizenship of that country, such application will be accepted by the second country.
Further, there are certain laws of specific countries which does not recognize dual nationality, such as the UK; however, it is not mandatory that a person will lose his Indian citizenship due to that.
An applicant who applies to renounce Indian citizenship of a minor child (as per sub-section (2) of section 3), will also ensure that the minor child does not become a citizen of that other country by virtue of renouncing his Indian citizenship.
Therefore, in the context of legal implications for parents if their minor child is considered a dual national, there should not be a concern regarding dual nationality, because the cancellation of Indian citizenship of minor child will not affect his nationality in that other country, even if such country does not allow dual nationality.
Travel Restrictions on Minors with OCI Cards
Minor OCI cardholders are not required to have an Indian visa to travel to India. However, when leaving or entering India, a minor OCI cardholder must be accompanied by a parent that is an OCI cardholder or have the written permission of both parents. This provision was added because when a minor OCI cardholder who is traveling with a parent that holds a foreign passport but not an Indian visa, the OCI cardholder might not be permitted to enter for want of an Indian visa on the foreign passport. The Indian Ministry of Home Affairs made the following remarks in the OCI card Rules regarding the requirement of minors to travel out of and into India with a parent that is an OCI cardholder and/or with prior permission of both parents.
The Minor OCI cardholder would also be required to have a letter from both natural parents for entry into , and exit from, India (because the OCI cardholder does not require a visa to enter India and, therefore, does not require an accompanying parent that is an OCI cardholder), or in the event of the death of either or both natural parents of the minor, the Minor OCI cardholder would be required to have a letter from the surviving parent or the natural guardian of the child in India. The minor cardholder may also be asked to show an invitation letter, birth certificate, and/or marriage certificate to establish the parent-child relationship.
If such letter is not available at hand, and if the Minor OCI cardholder travels out of India with one parent and tries to travel back to India alone or with the other parent without proper documentation, the Minor OCI cardholder is likely to be denied entry.
Impact of Changes in Parents’ Current Status
Parents who are in the process of a divorce or separation with legal disputes related to custody may have a route available to attempt to prevent the denial of a child’s OCI card based on the lack of an NRI parent’s consent. If a US court has awarded custody of the child to the US parent, that court order may be utilized (along with other factors) as sufficient justification for granting the OCI card without the non-custodial parent’s consent. An adjustment may also be able to be made to the circumstances surrounding the minority OCI holder’s OCI card if the natural parents of the child have been granted a divorce and one of the divorced parents is relocating to India. When the custodial parent of a minor travels to India on OCI status, the OCI card holder should be aware that the custodial status of the child to be transferred to the laws of India. To avoid any potential complications, US custody orders must be registered in India when a U.S. parent is leaving with the child (to India or elsewhere). That order must be registered at the family court in India and other related permissions must be obtained. Parents in India undergoing divorce are required to obtain an NRI Certificate from their Embassy/Consulate of the country in which they hold foreign citizenship tentatively permitting their child to be relocated abroad. This Certification is in the nature of a No Objection Certificate, after which, caretakers may proceed to pursue an order for removal of the child from India.
Conclusion
In conclusion, it is important for those eligible for OCI to be well-informed about the legal status of parents in relation to minor OCI card holders. As we have seen above, the answer is not always as straightforward as it may seem, and there are a number of complex issues at the centre of this subject. In light of changes to OCI rules and regulations and the lack of a clear precedent , it is strongly recommended that parents of minor OCI card holders carefully consider their own legal residency in relation to OCI applications as well as the potential negative impact of having two conflicting statuses held by a minor child at the time of renewal.