Dual Citizenship for Indian Minors

[rons4174]

I have a 4-year old son and was born in UK before we received our ILR. We have received our ILRs now. Is there a way to ensure he doesn't lose his Indian Citizenship when we apply for his British Citizenship given he is a minor.

Can he decide when he is 18 years, which citizenship he wants to hold? Or is there really no way out?

Please let me know. Thanks.

[secret.simon]

Not according to Indian law (British law has no issues with the child holding dual citizenship).

A child born with dual Indian/foreign citizenship can hold both citizenships till the age of 18 (provided they do not acquire a foreign passport), when s/he must decide which one they wish to retain. So, that applies to children
a) one of whose parents is British and the other Indian and the child is born in India, or
b) one of whose at least one parent is Indian and one parent is holding ILR at the time of birth (it can be the same or different parents) and the child is born in the UK.

If citizenship is acquired after birth (such as by naturalisation or registration), Indian law automatically revokes Indian citizenship from the person, whether child or adult. See Section 9 of the (Indian) Citizenship Act 1955.

Indeed, even if the dual citizenship child mentioned above were to merely acquire a foreign passport, Indian citizenship is revoked.

Topic moved to the Other Countries forum as the question is about Indian citizenship law, not British citizenship law.

[FaeLLe]

Not according to Indian law (British law has no issues with the child holding dual citizenship).

A child born with dual Indian/foreign citizenship can hold both citizenships till the age of 18 (provided they do not acquire a foreign passport), when s/he must decide which one they wish to retain. So, that applies to children
a) one of whose parents is British and the other Indian and the child is born in India, or
b) one of whose at least one parent is Indian and one parent is holding ILR at the time of birth (it can be the same or different parents) and the child is born in the UK.

If citizenship is acquired after birth (such as by naturalisation or registration), Indian law automatically revokes Indian citizenship from the person, whether child or adult. See Section 9 of the (Indian) Citizenship Act 1955.

Not applicable for OP but.... Should be very easy to keep dual citizenship if the child is born with (if either parent is BC or ILR before birth), just do not apply for a british passport and use the COE.

The child could apply for a certificate of entitlement in the indian passport and use that to live in the UK till 18 and decide what they want to do - https://www.gov.uk/right-of-abode/apply ... ntitlement

[xebec]

Answer is no - that the dual citizen exemption is only given to countries that provide compulsory jus soli citizenship (birthright).

For example, a child born to Indian parents on an H1B/L1 etc visa in the US is automatically a US citizen by birth.
The parent can apply for Indian citizenship for the child under jus sanguinis (descent), but the US will mandatory force the child to depart USA on an American passport as under US law the child is a US citizen.

This exemption does not apply in your case.

[FaeLLe]

Answer is no - that the dual citizen exemption is only given to countries that provide compulsory jus soli citizenship (birthright).

For example, a child born to Indian parents on an H1B/L1 etc visa in the US is automatically a US citizen by birth.
The parent can apply for Indian citizenship for the child under jus sanguinis (descent), but the US will mandatory force the child to depart USA on an American passport as under US law the child is a US citizen.

This exemption does not apply in your case.

What is your source that this exemption applies only to jus soli?

[FaeLLe]

Answer is no - that the dual citizen exemption is only given to countries that provide compulsory jus soli citizenship (birthright).

For example, a child born to Indian parents on an H1B/L1 etc visa in the US is automatically a US citizen by birth.
The parent can apply for Indian citizenship for the child under jus sanguinis (descent), but the US will mandatory force the child to depart USA on an American passport as under US law the child is a US citizen.

This exemption does not apply in your case.

What is your source that this exemption applies only to jus soli? There is no legal basis for this statement AFAIK.

[xebec]

What is your source that this exemption applies only to jus soli? There is no legal basis for this statement AFAIK.

I stand corrected. You could gain citizenship from descent too- the key word is "voluntary". I just didn't explore all the possibilities and left it simple. For the benefit of all readers, I've expanded below:

Let's look at the ways one can get Indian citizenship:
1. Birth
2. Descent
3. Registration
4. Naturalisation

Cases 3 and 4 do not apply for this scenario as you have to surrender any foreign citizenship before taking on Indian citizenship. So you're left with birth and descent.

1. Indian citizen by birth.
Child born in India, one parent is Indian, other parent is a foreign citizen legally resident in India. Child is an Indian citizen by birth. Source: Section 3.1.ii of the Act: one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.

Now, if the foreign parent registers the birth in a foreign consulate, the person may be a national of that foreign country. If a country mandates that its citizens must register any births to their citizens born abroad, then the child may be a citizen of that country too. Eg Bulgarian citizens must register births within six months, and the children are automatically considered Bulgarian citizens by descent. Source: https://www.mfa.bg/en/services-travel/c ... us#title-1

I believe that the Indian government are more lenient on minor dual citizens whose secondary citizenship was involuntary acquired. The above scenario would fit the condition. If the child were to later get a Bulgarian id card and passport, there could be complications, but I don't believe that this scenario has been tested in court, as the case for the government would be weak to prove 'voluntary' acquisition, especially when a foreign citizen has to abide by foreign law.


2. Let's look at the case for Indian citizenship by descent ie Child born outside India
Source: https://indiancitizenshiponline.nic.in/acquisition1.htm
A person born outside India on or after 3rd December, 2004 shall not be a citizen of India, unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period. [Section 4b of the Citizenship Act 1955]

3. Both parents are Indian, child not eligible for host [eg UK] citizenship by birth at time of birth
Child cannot be stateless, hence Indian citizenship by descent.

4. One parent Indian, other parent not an Indian citizen, and not a jus solis citizen of the country the child was born in. eg Indian father, New Zealand mother, child born in the UK. Child not eligible for citizenship by birth. Hence the child is eligible for Indian / New Zealand citizenship.

When registering the child, you can register the child as a New Zealand citizen or an Indian citizen first. Unlike the case for Bulgaria, registering a birth to a NZ citizen abroad is not compulsory, and NZ allows dual citizenship.

>> If you apply for a New Zealand citizenship first, you cannot make a truthful affidavit/statutory declaration that the child does not have a second nationality when applying for Indian citizenship later.
>> If you apply for Indian citizenship first, then the moment you register for New Zealand citizenship you automatically lose your Indian citizenship under section Section 9(1) of the Act:
Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India So in this case, it would be a voluntary acquisition as it would be hard to prove that the registration was not of your own volition.

5. Let's go back to the scenario of the child born in the US.
>>Child eligible for Indian citizen by descent.
Both parents need to sign a declaration of non-acquisition of a U.S nationality. Source: https://indianembassyusa.gov.in/pdf/men ... ortFAQ.pdf
This then leads to a case where the US government considers the child born in the US a citizen regardless. US law requires all its citizens to arrive and depart on a US passport, so to travel outside the US, you need a US passport. To reside in the US and not be considered an illegal, you must either be a citizen or hold a valid visa. As a citizen, the child cannot get a US visa. The child cannot renounce US citizenship as they need to be over 16 years to do so. So they are stuck with an involuntary acquisition of US citizenship.

For involuntary acquired citizenship, at the age of 18, the child will automatically lose Indian citizenship if the foreign citizenship is not renounced.
(Section 4 1A) A minor who is a citizen of India by virtue of this section and is also a citizen of any other
country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of
another country within six months of attaining full age.]

I hope this clarifies the matter further.

[FaeLLe]

Spot on agree with everything, well done typing this up.
We should probably sticky this thread

What is your source that this exemption applies only to jus soli? There is no legal basis for this statement AFAIK.

I stand corrected. You could gain citizenship from descent too- the key word is "voluntary". I just didn't explore all the possibilities and left it simple. For the benefit of all readers, I've expanded below:

Let's look at the ways one can get Indian citizenship:
1. Birth
2. Descent
3. Registration
4. Naturalisation

Cases 3 and 4 do not apply for this scenario as you have to surrender any foreign citizenship before taking on Indian citizenship. So you're left with birth and descent.

1. Indian citizen by birth.
Child born in India, one parent is Indian, other parent is a foreign citizen legally resident in India. Child is an Indian citizen by birth. Source: Section 3.1.ii of the Act: one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.

Now, if the foreign parent registers the birth in a foreign consulate, the person may be a national of that foreign country. If a country mandates that its citizens must register any births to their citizens born abroad, then the child may be a citizen of that country too. Eg Bulgarian citizens must register births within six months, and the children are automatically considered Bulgarian citizens by descent. Source: https://www.mfa.bg/en/services-travel/c ... us#title-1

I believe that the Indian government are more lenient on minor dual citizens whose secondary citizenship was involuntary acquired. The above scenario would fit the condition. If the child were to later get a Bulgarian id card and passport, there could be complications, but I don't believe that this scenario has been tested in court, as the case for the government would be weak to prove 'voluntary' acquisition, especially when a foreign citizen has to abide by foreign law.


2. Let's look at the case for Indian citizenship by descent ie Child born outside India
Source: https://indiancitizenshiponline.nic.in/acquisition1.htm
A person born outside India on or after 3rd December, 2004 shall not be a citizen of India, unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period. [Section 4b of the Citizenship Act 1955]

3. Both parents are Indian, child not eligible for host [eg UK] citizenship by birth at time of birth
Child cannot be stateless, hence Indian citizenship by descent.

4. One parent Indian, other parent not an Indian citizen, and not a jus solis citizen of the country the child was born in. eg Indian father, New Zealand mother, child born in the UK. Child not eligible for citizenship by birth. Hence the child is eligible for Indian / New Zealand citizenship.

When registering the child, you can register the child as a New Zealand citizen or an Indian citizen first. Unlike the case for Bulgaria, registering a birth to a NZ citizen abroad is not compulsory, and NZ allows dual citizenship.

>> If you apply for a New Zealand citizenship first, you cannot make a truthful affidavit/statutory declaration that the child does not have a second nationality when applying for Indian citizenship later.
>> If you apply for Indian citizenship first, then the moment you register for New Zealand citizenship you automatically lose your Indian citizenship under section Section 9(1) of the Act:
Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India So in this case, it would be a voluntary acquisition as it would be hard to prove that the registration was not of your own volition.

5. Let's go back to the scenario of the child born in the US.
>>Child eligible for Indian citizen by descent.
Both parents need to sign a declaration of non-acquisition of a U.S nationality. Source: https://indianembassyusa.gov.in/pdf/men ... ortFAQ.pdf
This then leads to a case where the US government considers the child born in the US a citizen regardless. US law requires all its citizens to arrive and depart on a US passport, so to travel outside the US, you need a US passport. To reside in the US and not be considered an illegal, you must either be a citizen or hold a valid visa. As a citizen, the child cannot get a US visa. The child cannot renounce US citizenship as they need to be over 16 years to do so. So they are stuck with an involuntary acquisition of US citizenship.

For involuntary acquired citizenship, at the age of 18, the child will automatically lose Indian citizenship if the foreign citizenship is not renounced.
(Section 4 1A) A minor who is a citizen of India by virtue of this section and is also a citizen of any other
country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of
another country within six months of attaining full age.]

I hope this clarifies the matter further.

[xebec]

Thanks!

Spot on agree with everything, well done typing this up.
We should probably sticky this thread

[arianraj]

I know this topic has been discussed earlier but I believe the earlier topics were closed with wrong conclusions.
Have a read on below news article:
https://economictimes.indiatimes.com/ne ... 996471.cms

So Section 4 (1) of Citizen act 1955 says that Indian Minors can choose to hold both citizenhip until after the six months from the moment they turn 18 years old - https://www.indiacode.nic.in/bitstream/ ... t_1955.pdf

Any views are welcome.