The Law Library of Congress, Global Legal Research Center

(202) 707-6462 (phone) • (866) 550-0442 (fax) • law@loc.gov • http://www.law.gov

Laws Concerning Children of 

Undocumented Migrants in 

Selected Countries

September 2017
This report is provided for reference purposes only. 

It does not constitute legal advice and does not represent the official 

opinion of the United States Government. The information provided 

reflects research undertaken as of the date of writing. 

It has not been updated.
Contents

Comparative Summary ....................................................................................................................1

Argentina..........................................................................................................................................3

Australia...........................................................................................................................................6

Brazil................................................................................................................................................8

Canada............................................................................................................................................13

China..............................................................................................................................................18

European Union .............................................................................................................................22

France.............................................................................................................................................24

Germany.........................................................................................................................................28

India ...............................................................................................................................................35

Israel...............................................................................................................................................39

Italy ................................................................................................................................................45

Japan ..............................................................................................................................................49

Mexico ...........................................................................................................................................53

Russia.............................................................................................................................................57

Saudi Arabia...................................................................................................................................60

South Africa ...................................................................................................................................62

Sweden...........................................................................................................................................66

Turkey............................................................................................................................................74

United Kingdom.............................................................................................................................79
The Law Library of Congress 1

Comparative Summary

Peter Roudik 

Assistant Law Librarian for Legal Research

This report by the Law Library of Congress surveys the laws of twenty jurisdictions (the 

European Union and selected major economically developed countries, representing all 

continents and geographic regions of the world) related to the treatment of undocumented 

migrants who arrived as minors, their eligibility for obtaining legal status and access to social 

benefits, and their possibilities for becoming citizens. Additionally, all country surveys provide 

a general overview of national migration legislation, and past amnesty programs are reviewed to 

illustrate national efforts in resolving problems involving the legalization of undocumented 

youth. In defining undocumented migrants and those minors who arrived in the country outside 

the boundaries of the regular migration process, each country report follows definitions used in 

the specific country’s legislation to define those who illegally enter, stay, and work in 

the country. 

The laws of the majority of the countries included in this report do not provide for legal status or 

a pathway to citizenship for the children of undocumented persons, and consider those who 

entered the country illegally inadmissible in general. However, many countries are more lenient 

in regard to providing opportunities to stay and work for those who were born inside the country 

or were brought to the country as a child by illegal migrant parents—a policy declared by a 1954 

ruling of the Argentinian Supreme Court, which stated that if “the applicant entered the country 

as a minor, he could not be responsible for noncompliance with immigration norms.” 

No country included in the report has special programs that would establish a direct path to 

citizenship for the children of undocumented migrants; however, many of them undertake efforts 

aimed at regularizing the legal status of young migrants. The report demonstrates a variety of 

approaches to dealing with young people who do not have documentation to prove that they are 

in the country legally. These approaches range from detention and deportation (Saudi Arabia), to 

subjecting them to the general immigration and citizenship acquisition rules (Italy), to providing 

opportunities to obtain residency permits that would allow them to live and work in the country. 

Depending on their age and length of presence in the country, a temporary stay and deferred

enforcement of immigration laws may be granted to those who entered the country at a relatively 

young age and meet other specific requirements (Germany, France). Even when those who have 

overstayed their visas or have entered the country illegally are considered inadmissible, 

temporary resident permits may be granted under exceptional circumstances (Canada, Mexico, 

United Kingdom). Some countries (Russia, South Africa) have introduced programs for the 

legalization of migrants who are working illegally, but these programs are limited to migrants 

from particular countries of origin. A comprehensive program for the legalization of certain 

undocumented persons who arrived as children existed in Australia during the mid-1990s to 

November 2005, but was cancelled due to abuse of the program by some participants. Other 

Australian programs were also short-lived because they were initiated by executive ministries 

and did not have parliamentary approval. While some countries prohibit the naturalization of 

illegal migrants at all (India), a pathway to citizenship is foreseen in the laws of others. 
Laws Concerning Children of Undocumented Migrants: Comparative Summary

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However, no country appears to grant citizenship to the children of undocumented migrants 

automatically and requires legalization of status and meeting other requirements 

for naturalization. 

The report illustrates that most of the countries surveyed allow undocumented migrants to 

receive access to public health care and education. The details of each country’s governing laws 

are provided in the individual country surveys.
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Argentina

Graciela Rodriguez-Ferrand 

Senior Foreign Law Specialist

SUMMARY Argentina does not have a program for children of irregular migrants equivalent to the US 

DACA program. However, such children have access to health, education, and social 

benefits while their regularization process is underway. The minor children of irregular 

migrants have access to Argentine citizenship upon meeting legal requirements. 

I. Introduction

Argentina does not have a special program for children of irregular migrants similar to the US 

DACA program. Children with irregular immigration status are subject to the general legal 

regime applicable to all irregular migrants, which grants them the right to health care and 

education while their regularization is processed. 

II. Irregular Migrants

The immigration enforcement authority is the Dirección Nacional de Migraciones (DNM)

(National Directorate on Migration), which issues entry permits, residence permits, and changes 

of status, and applies sanctions in case of violations of the Law on Migration 25871.1 According 

to the Law on Migration, once the DNM verifies an irregular immigration status, the DNM 

orders the foreigner to regularize his or her situation within a specified deadline, under penalty of 

expulsion.2

 If the deadline expires with no regularization, the DNM orders expulsion from the 

country, an order that is subject to appeal before a court.3

Once a petition for residence is filed, the applicant may be granted a temporary residence 

authorization for ninety days, renewable for as long as the application process lasts, allowing the 

applicant to stay, leave, and re-enter the country, and to work and study while the authorization 

is valid.

4

 If admission is denied or a determination of irregular status is appealed, a temporary 

stay permit may be issued for ninety days, renewable until a decision on the appeal is rendered, 

allowing the applicant to stay, study, and work in the country while the permit is valid.

5

Foreigners with an irregular immigration status are not allowed to work legally in the country6

and employers of irregular migrants are subject to fines.7 However, irregular migrant workers 

1 Ley 25871 on Migration, Dec. 17, 2003, art. 107, BOLETIN OFICIAL [BO], Jan 21, 2004, http://servicios.infoleg. 

gob.ar/infolegInternet/anexos/90000-94999/92016/texact.htm, archived at https://perma.cc/SC32-RMNE. 

2 Id. art. 61.

3 Id.

4 Id. art. 20.

5 Id. art. 20 bis. 

6 Id. art. 53.
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have all labor law protections regardless of their immigration status.8 They also have full 

education, health care, and social assistance rights.9 (The government grants legal migrants and 

their families equal access to social and public services and facilities, health, education, justice, 

employment, and social security, the same as Argentine nationals.10) 

Irregular migrants who entered the country through unofficial points of entry or by evading 

immigration controls are subject to expulsion from the country.11 In order to purge their

clandestine entry, they must leave and re-enter the country through an authorized port of entry.12

III. Path to Citizenship for Irregular Migrants

Under the Argentine Constitution13 anyone born in Argentina is an Argentine national, 

regardless of the nationality of the parents.14 Argentina follows primarily the principle of jus 

soli,

15 but also embraces the principle of jus sanguinis by granting Argentine nationality to the 

child of an Argentine national who was born abroad and opts for such nationality.16 

In order to acquire Argentine nationality through naturalization, an applicant must be eighteen 

years of age or older and have resided in Argentina either as permanent or temporary resident for 

two years before submitting the naturalization petition and expressing the will to do so before a 

judge.17 The residency requirement has been interpreted as legal residency, which must be 

proved through a certification issued by the DGM.18 

The Supreme Court ruled in a 1954 case that when the applicant entered the country as a minor, 

he could not be responsible for noncompliance with immigration norms, and therefore could not 

7 Id. art. 59.

8 Id. art. 56.

9 Id. arts. 7 & 8.

10 Id. art. 6.

11 Id. arts. 29 K & 37.

12 Silvana Begala, Migrantes en Argentina: Inclusión Diferencial y Ciudadanías Jerarquizadas, ANUARIO DEL CIJS

771–72 (2012), https://ddd.uab.cat/pub/caplli/2014/168590/Anuario-CIJS-2012_migrantesargentina.pdf, archived at

https://perma.cc/6RP4-78EW. 

13 NATIONAL CONSTITUTION [CN], Aug. 22, 1994, art. 20, http://servicios.infoleg.gob.ar/infolegInternet/anexos/0-

4999/804/norma.htm, archived at https://perma.cc/H9NT-Q3GF .

14 Ley 346 Ley de Nacionalidad [Law on Nationality ], Oct. 1, 1869, as amended by Decreto 70/2017, BO Jan. 30, 

2017, art. 1.a, http://servicios.infoleg.gob.ar/infolegInternet/anexos/45000-49999/48854/texact.htm, archived at

https://perma.cc/HW2U-HR27.

15 CN art. 75.12. 

16 Ley de Nacionalidad art. 1.2.

17 Id. art. 2.1.

18 MARIO OYARZABAL, LA NACIONALIDAD ARGENTINA 23–24 (Buenos Aires, 2003). 
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be denied Argentine nationality on the basis that he could not prove that he entered the country 

through legal means.19

Applicants may be exempted from the two-year residency requirement if they have enrolled and 

rendered services in the Armed Forces of Argentina.20

 19 Fallos Corte Suprema de Justicia de la Nación (CSJN) 230:244, 1954 Barrios, Manuel s/ Naturalización y 

Ciudadanía, in id. at 24. 

20 Ley de Nacionalidad art. 2.2.2.
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Australia

Luis Acosta 

Chief, Foreign, Comparative, and International Law Division II 

SUMMARY Among Australia’s limited efforts at regularizing undocumented immigration was a special 

visa category for “innocent illegal migrants” who lost legal status prior to turning eighteen, 

spent their “formative years” in Australia, and were separated from the family with whom 

they entered the country. The government terminated this program in 2005. 

I. Introduction

Australia’s immigration and border protection policies are based on a visa system in which

noncitizens lacking a visa are deemed unlawfully present and must either obtain a proper visa, 

leave the country, or be subject to detention.1

 Australia’s refugee and humanitarian program is 

also structured as a visa system.2 

With regard to citizenship of children who were born in Australia, prior to August 20, 1986, such 

children automatically became Australian citizens. Children who were born in Australia on or 

after August 20, 1986, are automatically citizens only if they have at least one parent who is an 

Australian citizen or permanent resident. Children born in Australia who do not have at least one 

parent who is an Australian citizen or permanent resident but who spend the first ten years of 

their life in Australia are also deemed Australian citizens.

3

 

II. Regularization Efforts

Australia has had only limited experience using regularization programs to address 

undocumented immigration. In 1980, a six-month initiative called the Regularization of Status 

Programme allowed persons without permanent resident status who were present either legally or 

illegally to apply for such status. Applicants had to meet health and character requirements, 

provide background documentation, and be interviewed by government personnel. While the 

program was considered a relative success, a 1981 amendment stipulated that any future 

regularization program would have to have parliamentary rather than mere ministerial approval.4

 

1 See generally KELLY BUCHANAN, LAW LIBRARY OF CONGRESS, CITIZENSHIP PATHWAYS AND BORDER

PROTECTION: AUSTRALIA (2013), https://www.loc.gov/law/help/citizenship-pathways/australia.php, archived at

https://perma.cc/G5WP-MJFY.

2

 KELLY BUCHANAN, LAW LIBRARY OF CONGRESS, REFUGEE LAW AND POLICY: AUSTRALIA (2016), 

https://www.loc.gov/law/help/refugee-law/australia.php, archived at https://perma.cc/8CE8-GQTZ. 

3 Australian Government Department of Immigration and Border Protection, Evidence of Australian Citizenship—

Eligibility, http://www.border.gov.au/Trav/Citi/Curr/evidence-of-australian-citizenship/eligibility (last visited Sept. 

15, 2017), archived at https://perma.cc/E33H-7KDC. 

4

 HOUSE COMM. ON THE JUDICIARY, 99TH CONG., 1ST SESS., IMPACT OF ILLEGAL IMMIGRATION AND BACKGROUND 

ON LEGALIZATION: PROGRAMS OF OTHER COUNTRIES 154–57 (Comm. Print 1985). 
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A limited provision for regularization applied only to certain undocumented persons who arrived 

in Australia as children. During the mid-1990s to November 2005, Australia had a special visa 

category for “innocent illegal” migrants who were separated from the family with whom they 

entered; the program enabled them to obtain permanent residence after turning eighteen.

5

 A

covered “innocent illegal” was

someone who [wa]s over the age of 18, ceased to hold a substantive visa (ie became an 

‘unlawful non-citizen’) before he or she turned 18, and [was] determine[d to have] had, 

before turning 18, spent the greater part of his or her ‘formative years’ in Australia. In 

addition, the applicant must not [have been] a member of, nor live[d] with, the family 

with whom they entered Australia. Finally, they must not have held a transit visa 

immediately before becoming an unlawful non-citizen.

6

The determination regarding whether the migrant spent his or her “formative years” in Australia 

turned on whether the person spent the greater part of his or her life between the ages of five and 

eighteen in Australia, or, if not, on the person’s particular circumstances, taking into account 

where the person spent his/her adolescence, formed a sense of identity, had a connection with a 

place in the world, or absorbed his/her background culture.7

Although the number of visas granted under this category was relatively small, the government 

reportedly came to view the program as subject to abuse because of “young people purportedly 

leaving their family temporarily in order to qualify for the visa only to return to live with them 

once they received a permanent visa.”8 The program was ended in November 2005.9

 5 MARY CROCK & LAURIE BERG, IMMIGRATION, REFUGEES AND FORCED MIGRATION: LAW, POLICY AND PRACTICE 

IN AUSTRALIA 221 (2011).

6 Parliament of Australia, Parliamentary Library, Bills Digest No. 58 1996-97: Student and Youth Assistance 

Amendment (Waiting Period) Bill 1996, n. 8 (Nov. 22, 1996), http://www.aph.gov.au/Parliamentary_Business/

Bills_Legislation/bd/BD9697/97bd058, archived at https://perma.cc/ZG25-JSPY.

7 JOHN VRACHNAS ET AL., MIGRATION AND REFUGEE LAW: PRINCIPLES AND PRACTICE IN AUSTRALIA 149 (2005).

8 CROCK & BERG, supra note 5, at 221 n.81. 

9 Id. at 221.
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Brazil

Eduardo Soares

Senior Foreign Law Specialist

SUMMARY Constitutional principles grant rights and duties to aliens living in the country. Federal 

law regulates immigration issues in general, and an immigration agency subordinated to 

the Ministry of Labor is in charge of immigration policies. Citizenship is acquired by 

birth on Brazilian soil and through naturalization or a continuous period of residence in 

the country. The federal government, through the Federal Police, is in charge of 

enforcing immigration laws. Brazil recently enacted a new immigration law that will 

enter into force in November 2017. 

I. Constitutional Principle

According to the Brazilian Constitution, everyone is equal before the law with no distinction 

whatsoever, guaranteeing to Brazilians and foreigners residing in the country the inviolability of 

the rights to life, liberty, equality, security, and property, according to the terms defined in article 

5 of the Constitution.1 Article 22 grants to the federal government (União) the exclusive power 

to legislate, inter alia, on nationality, citizenship, and naturalization,2 as well as on the 

“emigration, immigration, entry, extradition, and expulsion of foreigners.”3 A child born in Brazil 

to foreign nationals is considered a Brazilian citizen, provided that the parents are not employed 

in the service of their country.4 Extraordinarily, Brazilian citizenship can also be obtained upon 

request if a person has continuously resided for more than fifteen years in Brazil and does not 

have any criminal conviction.5

II. Law No. 6,815 of August 19, 1980

A. General Provisions

Law No. 6,815 of August 19, 1980, defines the legal situation of foreigners in Brazil, while 

Decree No. 86,715 of December 10, 1981, regulates all immigration matters concerning Law No. 

6,815 and created the National Council of Immigration (Conselho Nacional de Imigração—

CNIg). The CNIg is subordinate to the Ministry of Labor, and is the government body in charge 

of immigration matters.6

 1 CONSTITUIÇÃO FEDERAL art. 5, http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm, archived at

https://perma.cc/F2VM-23VE.

2 Id. art. 22(XIII).

3 Id. art. 22(XV) (all translations by author).

4 Id. art. 12(I)(a).

5 Id. art. 12(II)(b).

6 Id. art. 142.
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In order to travel to and enter Brazilian territory, an alien needs a visa, and visas fall into one of 

the following categories: transit, tourist, temporary, permanent, courtesy, official, and 

diplomatic.7 An alien under the age of eighteen, unaccompanied by his legal representative or 

without express authorization, cannot obtain a visa.8 

An alien who illegally enters or irregularly stays in Brazil and does not depart voluntarily is 

subject to deportation.9

 At the request of the Minister of Justice, the alien may be imprisoned for 

sixty days until the deportation is put into effect.10 The Federal Police is the competent agency 

that arrests11 and deports aliens.12

Whenever requested by the authorities, an alien must show proof of legal immigration status in 

the Brazilian territory.13 

B. Acquisition of Citizenship

In order to apply for Brazilian citizenship, an alien must satisfy certain conditions.14 The alien

(I) must have civil capacity[15]according to Brazilian law;

(II) must be registered as a permanent alien in Brazil;

(III) must be in continuous residence in Brazilian territory for at least four years

immediately before applying for citizenship;

(IV) must read and write the Portuguese language, evaluated on the basis of the social

and intellectual situation of the applicant;

(V) must practice a profession or have enough possessions to guarantee his and his

family’s maintenance;

7

 ESTATUTO DO ESTRANGEIRO, Lei No. 6.815, de 19 de Agosto de 1980, art. 4, 

http://www.planalto.gov.br/ccivil_03/Leis/L6815compilado.htm, archived at https://perma.cc/A3XZ-VU5C. 

8 Id. art. 7(I).

9 Id. arts. 57, 125(I).

10 Id. art. 61.

11 Decreto No. 86.715, de 10 de Dezembro de 1981, art. 110(I), 

http://www.planalto.gov.br/ccivil_03/decreto/antigos/d86715.htm, archived at https://perma.cc/644A-6JU2. 

12 Id. art. 98(§1).

13 Id. art. 96.

14 Lei No. 6.815, art. 112.

15 Article 5 of the Brazilian Civil Code (CÓDIGO CIVIL, Lei No. 10.406, de 10 de Janeiro de 2002, 

http://www.planalto.gov.br/ccivil_03/LEIS/2002/L10406.htm, archived at https://perma.cc/Q4R2-FPPH) determines 

that minority ceases at the completion of eighteen years of age, when the person is then fully capable of practicing all 

acts of civil life. Paragraph 1 of article 5 further establishes that a minor’s incapacity may also cease by the concession 

of the parents, or one of them in the absence of the other, through a public instrument, independently of judicial 

sanction or judicial decision of a sixteen year-old minor (Id. art. 5(§1)(I).); by marriage (Id. at II); effective exercise of 

public employment (Id. at III); graduation from an institution of higher education (Id. at IV); commercial or civil 

establishment, or the existence of an employment relationship that provides a sixteen-year-old minor with economic 

support. Id. at V.
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(VI) must have good behavior;

(VII) cannot have been indicted or convicted in Brazil or abroad for a felony; [and]

(VIII) must be in good health[.]16

The four-year residence requirement may be reduced to three years if the alien possesses real 

estate or an enterprise in Brazil; to two years because of the alien’s professional, scientific, or 

artistic abilities; and to one year if the alien has a Brazilian spouse, a Brazilian child, a Brazilian 

parent, or has performed a relevant service to Brazil.17

The application for naturalization is filed with the local agency of the Department of Federal 

Police,18 which is subordinate to the Ministry of Justice, and must indicate whether the applicant 

intends to have his name translated or adapted to the Portuguese language. The application must 

also include the documents listed in article 119 of Decree Law No. 86,715 of December 

10, 1981.19

An alien who is admitted to Brazil by the age of five and permanently lives in the country may,

within two years after reaching adulthood, apply for naturalization.20

A foreigner admitted to Brazil during the first five years of his life and who permanently lives in 

the country may, while still a minor, require through his legal representative the issuance of a 

provisional certificate of naturalization.

21 An alien who is the holder of such a provisional 

certificate of naturalization and wants to confirm his intention to continue to be a Brazilian 

citizen must manifest such intention to the Minister of Justice within two years after

reaching majority.22

A foreigner who comes to reside in Brazil before reaching the age of majority and has obtained a 

degree from a national institution of higher education may, within one year after graduation, 

apply for naturalization.23

 16 All translations are by the author.

17 Lei No. 6.815, art. 113.

18 Decreto No. 86.715, supra note 11, art. 125.

19 Id. art. 119.

20 Id. art. 120.

21 Id. art. 121.

22 Id. art. 122.

23 Id. art. 123.
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III. New Immigration Law No. 13,445

A. General Provisions

On May 24, 2017, Brazil promulgated Law No. 13,445, a new migration law that provides for 

the rights and duties of migrants and visiting aliens, regulates their entry and stay in the country, 

and establishes principles and guidelines for public policies for emigrants.24 Article 124(I) of 

Law No. 13,445 revokes Law No. 6,815, which had focused on the country’s national security. 

According to article 3 of Law No. 13,445 the migratory policy of Brazil is governed by, inter 

alia, noncriminalization of migration; nondiscrimination due to the criteria or procedures by 

which the person was admitted into the national territory; integral protection and attention to the 

superior interest of the migrant child and adolescent; and repudiation of collective deportation or 

deportation practices. As was the case with Law No. 6,815, an alien under the age of eighteen, 

unaccompanied or without written authorization from his or her legal representative, cannot 

obtain a visa.25

To enter the national territory without authorization is considered a violation and subjects the 

offender who does not leave the country, or does not regularize his or her migratory situation 

within the established period of time, to deportation.26 Persons who remain in national territory 

after the expiration of the legal term of their immigration documentation are also subject to 

deportation and a daily fine.

27 Law No. 13,445 will enter into force on November 21, 2017.28

Regulations for Law No. 13,445 have yet to be enacted.

B. Acquisition of Citizenship

Under the new law, naturalization can be ordinary, extraordinary, special, or provisional.29 

Ordinary naturalization will be granted to the alien who

(I) has civil capacity according to Brazilian law;

(II) has residency in Brazilian territory for at least four years; 

(III) communicates in the Portuguese language, considering the situation of the applicant;

(IV) does not have a criminal conviction or has been rehabilitated.

30

 24 Lei No. 13.445, de 24 de Maio de 2017, art. 1, http://www.planalto.gov.br/ccivil_03/_Ato2015-

2018/2017/Lei/L13445.htm, archived at https://perma.cc/L6A5-JJFQ. 

25 Id. art. 7(I).

26 Id. art. 109(I).

27 Id. art. 109(II).

28 Id. art. 125.

29 Id. art. 64.

30 Id. art. 65.
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The four-year requirement may be reduced to at least one if the applicant

(I) [vetoed];

(II) has a Brazilian child;

(III) has a Brazilian spouse or partner and is not separated legally or in fact at the

moment of granting naturalization;

(IV) [vetoed];

(V) has provided or could provide a relevant service to Brazil; or

(VI) is recommended [for a reduction] due to his or her professional, scientific, or

artistic capacity.31

Extraordinary naturalization may be granted to a person of any nationality who is established 

(fixada) in Brazil for more than fifteen years without interruption and without a criminal 

conviction, provided that he or she requires Brazilian nationality.32

Provisional naturalization may be granted to a migrant child or adolescent who has established 

residence in the national territory before completing ten years of age, and must be requested 

through his or her legal representative.33 The provisional naturalization may be converted to 

definitive naturalization if the applicant expressly requires it within two years after reaching the 

age of majority.34

IV. Programs or Policy

CNIg has not created any special government program or policy granting enforcement relief to 

undocumented immigrants who arrived as minors. 

31 Id. art. 66.

32 Id. art. 67.

33 Id. art. 70.

34 Id. art. 70(sole para.)
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Canada

Tariq Ahmad

Foreign Law Specialist

SUMMARY There are a number of persons who are considered inadmissible in Canada, including 

failed refugee claimants, individuals who have overstayed their visas, and individuals who 

have entered the country illegally. Currently there is no dedicated program to grant the 

children of undocumented persons legal status or a pathway to citizenship. However, in 

exceptional circumstances and at the discretion of the government, it appears that 

undocumented immigrants may be granted legal status through either temporary resident 

permits or permanent residency on humanitarian and compassionate grounds. 

In the past there have been instances where programs were established to regularize 

undocumented immigrants, the largest of which was the 1973 Adjustment of 

Status Program. 

I. Introduction

Immigration to Canada is predominantly regulated by the Immigration and Refugee Protection 

Act, 2001 (IRPA),

1 and nationality is governed by the Citizenship Act.2 Under the law, there are 

a number of pathways to citizenship, namely through birth, descent, adoption, and naturalization 

of permanent residents.

Canada accepts several categories of immigrants for permanent residence. According to 

Immigration, Refugees and Citizenship Canada (IRCC), “[a] permanent resident is someone who 

has been given permanent resident status by immigrating to Canada, but is not a Canadian 

citizen.”3 In addition to economic-class immigrants (skilled workers, entrepreneurs, including 

provincial nominees, investors, etc.), it admits specified family members and adopted children 

under the family class category, refugees, and others not falling into these specific categories 

who qualify for entry on humanitarian or compassionate grounds or for public policy reasons.4

Although there are no official statistics or census figures on the number of illegal immigrants in 

Canada, some estimate that there may be between 50,000 and 200,0005 (some estimates go up to 

 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 http://laws.justice.gc.ca/eng/acts/i-2.5/FullText.html, 

archived at https://perma.cc/6HM9-WWPR. 

2 Citizenship Act, R.S.C. 1985, c. C-29, http://laws.justice.gc.ca/eng/acts/C-29/FullText.html, archived at

https://perma.cc/JG2L-B39K. 

3 Understand Permanent Resident Status, IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA, http://www.cic. 

gc.ca/english/newcomers/about-pr.asp (last updated June 9, 2017), archived at https://perma.cc/HW39-XXJH.

4 Permanent Resident Program, IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA, http://www.cic.gc.ca/ 

english/resources/tools/perm/index.asp (last updated Feb. 6, 2017), archived at https://perma.cc/8DSW-45GH. 

5 Immigration Policy in Canada, HISTORICA CANADA, http://www.thecanadianencyclopedia.ca/en/article/ 

immigration-policy/ (last updated June 29 2017), archived at https://perma.cc/RQQ6-2Z4P. 
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500,0006) undocumented workers living in the country. The IRPA does not specifically 

criminalize unlawfully entering the country or unlawfully overstaying a visa. Both of these types 

of actions, however, fall under the general prohibition against contravening the law without 

exercising due diligence to prevent doing so.7 While the IRPA does provide for the prosecution 

of persons who enter the country illegally or illegally overstay a visa, trials for these offenses are 

rare. Most persons caught violating the general provisions of the immigration laws are deported 

or ordered to be removed.

II. Pathway to Legal Status for Children of Undocumented Immigrants

There are a number of persons who are considered inadmissible in Canada, including failed 

refugee claimants, individuals who have overstayed their visas, and individuals who have entered 

the country illegally. Currently there is no dedicated program to grant the children of 

undocumented persons legal status or a pathway to citizenship.8

There may be options for certain individuals with no status to be granted status, but only in 

exceptional circumstances. If a person is inadmissible but has a reason to stay or travel to 

Canada “that is justified in the circumstances,” he or she may apply for a temporary resident 

permit.9 To be eligible for this permit the person’s “need to enter or stay in Canada must 

outweigh the health or safety risks to Canadian society,” which is determined by an immigration 

or border services officer. There is no guarantee a person will be issued a temporary 

resident permit.10 

Persons who would not normally be eligible to become permanent residents of Canada may be 

able to apply on humanitarian and compassionate grounds.11 Factors that are considered include

• how settled the person is in Canada 

• general family ties to Canada 

• the best interests of any children involved, and 

• what could happen to the person if the request is refused.

12

 6 Levon Sevunts, Irregular Immigration – Canada’s Ghost Immigrants, RADIO CANADA INTERNATIONAL, 

http://www.rcinet.ca/immigration-en/2017/03/08/irregular-immigration-canadas-ghost-immigrants/ (last visited 

Sept. 28, 2017), archived at https://perma.cc/F97U-Z2V4. 

7 Immigration and Refugee Protection Act, S.C. 2001 c. 27, § 124(1)(a).

8 Vince Wong, Canada Has Done Even Less For Its ‘Dreamers’ Than the U.S., HUFFINGTON POST CANADA BLOG 

(Sept. 11, 2017), http://www.huffingtonpost.ca/vince-wong/canada-has-done-even-less-for-its-dreamers-than-the-us_a_23202268/, archived at https://perma.cc/DSC3-4STX.

9 Immigration and Refugee Protection Act § 24. 

10 Temporary Resident Permits, IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA, http://www.cic.gc.ca/ 

english/information/inadmissibility/permits.asp (last updated June 9, 2017), archived at https://perma.cc/NZV6-

8XPK; Temporary Residents: Overview, IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA, http://www.cic. 

gc.ca/english/resources/tools/temp/overview.asp (last updated Aug. 1, 2015), archived at https://perma.cc/GFV8-

WMXC. 

11 Immigration and Refugee Protection Act § 25. 

12 Humanitarian and Compassionate Grounds, IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA, http://www.cic. 

gc.ca/english/refugees/inside/h-and-c.asp, archived at https://perma.cc/Y52S-KPB2; see also Guide 5291 –
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A number of other rules apply to this application, including that an applicant “cannot apply for 

humanitarian and compassionate grounds if [he/she] had a negative decision from the IRB

[Immigration and Refugee Board of Canada] within the last 12 months. This is called the ‘one 

year bar.’ ”13

According to a 2012 article by immigration lawyer Shelley Levine, immigration authorities 

understand that if a large number of applicants “were to make Humanitarian and Compassionate 

applications, and were to be accepted it would amount to a general amnesty. No such amnesty is 

contemplated,” and therefore only a relatively small number of applications are accepted 

each year.

14

III. Undocumented Migrants and Citizenship

Similar to the United States, persons born in Canada are generally granted citizenship.15 The 

only exception is children of foreign diplomats, who are not granted Canadian citizenship even if 

they are born in Canada.16 Therefore, the children of undocumented migrants who are born in 

Canada are granted citizenship.

According to IRCC, in order to be eligible for Canadian citizenship through naturalization, a 

person must meet certain requirements related to

• Permanent Resident status 

• Time [the applicant has] lived in Canada 

• Income tax filing 

• Language skills 

• How well [the applicant knows] Canada [and]

• Prohibitions17 

 

Humanitarian and Compassionate Considerations, IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA,

http://www.cic.gc.ca/english/information/applications/guides/5291ETOC.asp (last updated Aug. 31, 2017), archived 

at https://perma.cc/M4HD-V5KB.

13 Humanitarian and Compassionate Grounds, supra note 12.

14 Shelley S. Levine, Humanitarian and Compassionate Applications, LEVINE ASSOCIATES (Aug. 6, 2012), 

http://www.levlaw.com/humanitarian-and-compassionate-applications/, archived at https://perma.cc/4PYV-G5BC. 

15 Citizenship Act § 3(1)(a). 

16 Id. § 3(2).

17 Find Out if You’re Eligible: Citizenship, IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA, http://www.cic.gc. 

ca/english/citizenship/become-eligibility.asp (last updated June 20, 2017), archived at https://perma.cc/T8WXD9MR. 
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In order to become a Canadian citizen, a person’s permanent resident (PR) status in Canada must 

also “not be in question.”18 This means he or she must not 

• be under review for immigration or fraud reasons

• have certain unfulfilled conditions related to [his/her] PR status

• be under a removal order (an order from Canadian officials to leave Canada)19

IV. Examples of Past Amnesty Programs

Since the 1960s, Canada has implemented a number of “regularization” programs, which have 

been described as effectively being amnesty programs, to regularize undocumented persons. The 

Chinese Adjustment Statement Program is considered the first formal regularization program in 

Canada, which regularized around 12,000 people. This program allowed for “Chinese migrants 

who came to Canada without status documents, or with the documents of a relative of a 

Canadian citizen (commonly referred to as ‘Paper Sons’), to apply for permanent residency.”20

Applicants to the program “needed to demonstrate that they were of ‘good moral character’ and 

were not involved in the ‘industry’ of ‘illegal immigration.’ ”21

In 1973, the Trudeau government established the Adjustment of Status Program,

22 which 

historically is considered the “largest regularization in Canada to date,” and “regularized about 

39,000 people from over 150 countries in a two-month period.”23 Persons who had been living 

in Canada with or without a legal immigration status since November 30, 1972, were given sixty 

days to apply for adjustment of status.24 Immigration officers who interviewed the aliens 

“retained discretion to grant landed immigrant status.”25 Factors considered were economic 

stability, family relationships, and humanitarian reasons.26 

18 Id. 

19 Id. 

20 Jean McDonald, Migrant Illegality, Nation Building, and the Politics of Regularization in Canada, 26(2) REFUGE:

CANADA’S JOURNAL ON REFUGEES 65, 66 (2009), https://refuge.journals.yorku.ca/index.php/refuge/article/ 

download/32079/29325, archived at https://perma.cc/D6BZ-WFL9. 

21 Id. 

22 DESMOND SLORER ET AL., CENTER FOR MIGRATION STUDIES, AMNESTY FOR UNDOCUMENTED MIGRANTS: THE

EXPERIENCE OF AUSTRALIA, CANADA AND ARGENTINA 11 (1977), http://cmsny.org/wp-content/uploads/ 

2016/02/Storer-et-al-Amnesty-for-Undocumented-Migrants.pdf, archived at https://perma.cc/QEY7-LKX4. 

23 Memo to Community Development and Recreation Committee to Executive Director, Social Development, 

Finance & Administration, Undocumented Workers in Toronto 7 (Oct. 22, 2012), http://www.toronto.ca/ 

legdocs/mmis/2013/cd/bgrd/backgroundfile-55291.pdf, archived at https://perma.cc/Z4NK-NY3R. 

24 VALERIE KNOWLES, STRANGERS AT OUR GATES: CANADIAN IMMIGRATION AND IMMIGRATION POLICY, 1540–

2015 (Toronto: Dundurn, 2016). 

25 Juan P. Osuna, Amnesty in the Immigration Reform and Control Act of 1986: Policy Rationale and Lessons from 

Canada, 3(1) AM. U. INT’L L. REV. 145, 168 (1988), http://digitalcommons.wcl.american.edu/cgi/viewcontent. 

cgi?article=1620&context=auilr, archived at https://perma.cc/4HEM-VCQY. 

26 THE REGULARIZATION OF NON‐STATUS IMMIGRANTS IN CANADA 1960–2004: PAST POLICIES, CURRENT 

PERSPECTIVES, ACTIVE CAMPAIGNS (Nov. 2004), http://accessalliance.ca/wp-content/uploads/2015/03/ 

Regularization-Report.pdf, archived at https://perma.cc/9UJ3-SSAM. 
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From 1994 to 1998, the Deferred Removals Order Class (DROC) regularized “several thousand 

failed refugee claimants who had remained in Canada for three years or more without a removal 

order.”27 According to one scholar, “[r]efused claimants were generally stuck ‘in limbo’ because 

they were from moratorium countries. Approximately 3,000 applicants from China, Iran, and 

other countries were regularized through this program, but many more were rejected because 

they did not meet residency requirements, or had criminal records or serious 

medical conditions.”28

 27 McDonald, supra note 20, at 67.

28 Id. 
The Law Library of Congress 18

China

Laney Zhang

Foreign Law Specialist

SUMMARY China does not appear to have a program specifically providing the children of foreigners 

who illegally enter, stay, or work in China a pathway to citizenship or legal residence. 

Under the nationality law, a child born in China is a Chinese citizen only if at least one of 

his or her parents is a Chinese citizen, or if his or her parents are settled in China and the 

parents are stateless or their nationalities cannot be determined. Naturalization is possible 

under the law, but in practice naturalization may be rare other than through marriage or a 

great contribution to the country. Unmarried children of Chinese citizens and permanent 

residents may apply for permanent residency in China; such children must be under the 

age of eighteen.

Foreigners illegally entering, staying, or working in China may be deported. Those who 

illegally enter, stay, or work in China may also be fined. Guardians or other persons 

responsible for guardianship may be fined if they fail to perform the obligations of a 

guardian and cause a foreign child under the age of sixteen to reside in China illegally. 

Chinese law on refugees and asylum is still being developed. Effective July 1, 2013, the 

new Exit and Entry Law allows refugees and asylum seekers to obtain ID cards, a step 

deemed to lay a foundation for future enhancement of refugees’ rights to work and obtain 

an education in China. In November 2013, it was reported that refugee children were

allowed to attend public schools at the primary level as local children in five 

Chinese provinces. 

I. Introduction

The People’s Republic of China (PRC or China) is not a country that has traditionally attracted 

large numbers of immigrants. Although the rapid economic growth over the past three decades 

has brought in more foreigners than ever before, there is still no comprehensive immigration and 

nationality statute in place. 

The primary law governing the acquisition and loss of Chinese citizenship is the PRC Nationality 

law adopted in 1980, which contains only seventeen general articles and has not been updated 

since its adoption.

1

 Other than the Nationality Law, immigration issues are mainly governed by

the PRC Law on the Administration of Exit and Entry (Exit and Entry Law), which entered into 

 

1 Zhonghua Renmin Gongheguo Guoji Fa [PRC Nationality Law] (adopted by the National People’s Congress 

(NPC) on Sept. 10, 1980, and effective the same day), THE LAWS OF THE PEOPLE’S REPUBLIC OF CHINA (1979–

1981) [LAWS OF CHINA 1979–81] 182–83, English translation available on the NPC website, at http://www.npc.gov. 

cn/englishnpc/Law/2007-12/13/content_1384056.htm, archived at https://perma.cc/T7MW-R7Z5. 
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effect in 2013.

2

 Immigration provisions are also found in regulations; in particular, the rules on 

permanent residency were first officially introduced into Chinese law in 2004, when the Ministry 

of Public Security and the Ministry of Foreign Affairs jointly issued the Measures for the 

Administration of the Examination and Approval of Foreigners’ Permanent Residence in China

(Permanent Residence Measures).

3

II. Citizenship and Permanent Residency

A. Citizenship

China does not appear to have a program specifically providing the children of foreigners who 

illegally enter, stay, or work in China a pathway to citizenship or legal residence. The 

nationality law basically follows the principle of jus sanguinis, under which a child born in 

China is a Chinese citizen only if at least one of his or her parents is a Chinese citizen, or if his or 

her parents are settled in China and the parents are stateless or their nationalities cannot 

be determined.

4

Naturalization is possible under the Nationality Law, although the provisions are general and 

vague, and in practice naturalization may be rare other than through marriage or a great 

contribution to the country.5 According to the Nationality Law, a foreign national or stateless 

person who is willing to abide by China’s Constitution and laws and who is a close relative of 

Chinese nationals, has settled in China, or has “other legitimate reasons” to apply for 

naturalization, may be naturalized as a Chinese citizen upon approval of his application.6 

B. Permanent Residency

Under the Permanent Residence Measures, unmarried children of Chinese citizens and 

permanent residents may apply for permanent residency in China; such children must be under 

the age of eighteen.

7

 The Measures specify that the following foreigners and their spouses and 

children are eligible to apply for permanent residency in China:

 2 Zhonghua Renmin Gongheguo Chujing Rujing Guanli Fa [PRC Law on the Administration of Exit and Entry] 

(adopted by the NPC Standing Committee on June 30, 2012, effective July 1, 2013), available on the State Council 

website, at http://www.gov.cn/flfg/2012-06/30/content_2174944.htm, archived at https://perma.cc/XU29-HJKF. 

3 Waiguoren Zai Zhongguo Yongjiu Juliu Shenpi Guanli Banfa [Measures for the Administration of the 

Examination and Approval of Foreigners’ Permanent Residence in China] (Permanent Residence Measures) (Order 

No. 74 of the Ministry of Public Security and Ministry of Foreign Affairs, Aug. 25, 2004), http://www.gov.cn/ 

gongbao/content/2005/content_64214.htm, archived at https://perma.cc/AF2P-XZCD. 

4 Id. arts. 4 & 6.

5 In recent years, many foreigners have obtained Chinese nationality in Hong Kong, where the Special 

Administrative Region (SAR) government has been accepting naturalization applications systematically since the 

establishment of the Hong Kong SAR in 1997. Press Release, News.gov.hk, LCQ2: Applications for Naturalisation 

as Chinese Nationals (Dec. 12, 2012), http://www.info.gov.hk/gia/general/201212/12/P201212120342.htm, archived 

at https://perma.cc/78GC-9B76. 

6 PRC Nationality Law art. 7.

7 Permanent Residence Measures art. 6. 
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• Investors who have made direct investments in China with stable operations and good tax

payment records for three successive years;

• Corporate executives, professors, and researchers who have held a post in China for at least

four consecutive years, have been physically present in China for a minimum period of three

cumulative years within the four years, and have good tax payment records; and

• Foreigners who have made great and outstanding contributions to China, and those who are

especially needed by the country.

8

III. Illegal Immigrants

The Exit and Entry Law places restrictions on foreigners who illegally enter, stay, or work in 

China. Such foreigners are rhetorically described as the “three illegals” foreigners (san fei wai 

guo ren) by the government.9

According to the Exit and Entry Law, foreigners illegally entering, staying, or working in China 

may be deported.10 Those who have been ordered deported but cannot be deported immediately 

will be detained.11 The Exit and Entry Law further specifies fines that may be imposed 

respectively on those who illegally enter, stay, or work in China.12 Guardians or other persons 

responsible for guardianship may be subject to a fine of up to RMB1,000 (about US$150) if they 

fail to perform the obligation of a guardian and cause a foreign child under the age of sixteen to 

reside in China illegally.

13

IV. Chinese Law on Refugees

China acceded to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol 

in September 1982.14 Despite its early accession to these treaties, the domestic law on refugees 

and asylum is still being developed. Currently, the only legal provisions relevant to refugees are 

one article in the Constitution providing the general principle on asylum, and one article in the 

Exit and Entry Law that gives legal status to refugees and asylum seekers. A comprehensive 

refugee law that would cover a wider range of refugee issues is under consideration.15

8 Id.

9 Faxian “San Fei” Waiguo Ren Ying Jishi Baogao Gong’an Jiguan [Reporting “Three Illegals” Foreigners to the 

Public Security Organs], NPC (July 2, 2012), http://www.npc.gov.cn/npc/xinwen/lfgz/lfdt/2012-07/02/content_ 

1728557.htm, archived at https://perma.cc/5LZ2-B2QU. 

10 Exit and Entry Law art. 62.

11 Id. art. 63.

12 Id. arts. 71, 78, & 80.

13 Id. art. 78.

14 UNHCR Regional Representation in China, UNHCR (Mar. 10, 1999), http://www.unhcr.org/hk/en/134-china2.html, archived at https://perma.cc/C573-RSBZ.

15 LIU GUOFU, ZHONGGUO NANMIN FA [CHINESE REFUGEE LAW] 214–16 (2015).
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Article 32 of the Constitution declares that China “may grant asylum to foreigners who request it 

for political reasons.”16 Effective July 1, 2013, the Exit and Entry Law contains a provision that, 

for the first time, allows refugees and asylum seekers to obtain ID cards in China. According to 

article 46 of the Exit and Entry Law, foreigners who apply for refugee status in China may, 

during the screening process, stay in China with temporary identity certificates issued by public 

security organs. Foreigners who are recognized as refugees may stay or reside in China with the 

refugee identity certificates issued by public security organs.17 

Other than the above Constitution and the Exit and Entry Law provisions, there are no legal 

provisions specifically regulating the admission of refugees and handling of refugee claims under 

Chinese law. The refugee status determination is generally conducted by the United Nations 

High Commissioner for Refugees (UNHCR) Beijing Office and Chinese authorities have not 

substantially engaged themselves in the UNHCR process. Refugees are recognized under the 

UNHCR’s mandate.18 Nor is there an explicit, competent authority in charge of refugee affairs. 

The Ministry of Public Security should be responsible for matters relevant to refugee status 

recognition and repatriation of refugees, and the Ministry of Civil Affairs should attend to 

refugee resettlement, but no law explicitly authorizes them as the competent authorities.19

Refugees in China were generally treated as aliens who had no right to employment.20 They 

were supported by the UNHCR in terms of food, accommodation, health care, and children’s

education.21 Article 46 is deemed a positive first step in providing a legal ground for refugees to 

live in China. Recognizing that refugees and asylum seekers are entitled to ID cards, the law 

“lays a foundation for future enhancement of refugees’ rights in China, such as the right to work 

and the right to education.”22 In November 2013, the UNHCR reported that refugee children in 

five Chinese provinces were allowed to attend public schools at the primary level under the same 

conditions as local children.23

 16 XIANFA [CONSTITUTION] art. 32, § 2 (1982), 2004 FAGUI HUIBIAN 4–28.

17 Exit and Entry Law art. 46. 

18 UNHCR Regional Representation in China, supra note 14; Cong Guojifa Yiwu Tan Woguo de Nanmin Zhenbie 

Jizhi [On Building Our Refugee Determination System from Perspective of International Law Obligations], 

XINHUANET (May 13, 2015), http://news.xinhuanet.com/legal/2015-05/13/c_127793981.htm, archived at

https://perma.cc/A9FR-C4DK. 

19 ZhaoΥinan, Legal Status for Seekers of Asylum, CHINA DAILY (July 2, 2012), http://usa.chinadaily.com.cn/china/ 

2012-07/02/content_15540683.htm, archived at https://perma.cc/FH74-HUJM. 

20 Other than those Indochinese refugees China accepted in 1970s and still hosts, who were provided refugee status 

and settled in southern China. UNHCR Regional Representation in China, supra note 14. 

21 Id.

22 Lili Song, Refugee Protection in China: Recent Legal and Policy Developments, RIGHTS IN EXILE (Sept. 1, 2014), 

http://rightsinexile.tumblr.com/post/96365498957/refugee-protection-in-china-recent-legal-and, archived at

https://perma.cc/9LEE-JJ98.

23 Chinese Schools Offer Primary Education for Urban Refugees, UNHCR (Nov. 22, 2013), http://www.unhcr. 

org/528f66086.html, archived at https://perma.cc/8SSB-AS67. 
The Law Library of Congress 22

European Union

Jenny Gesley

Foreign Law Specialist

SUMMARY No EU legislation deals with immigration enforcement relief for the children of illegal 

immigrants. The individual EU Member States grant specific status rights and decide who 

can acquire nationality. Nonetheless, all immigrants in the EU enjoy certain fundamental 

rights irrespective of their immigration status, including access to education and health 

care. Member States are also obliged to take the best interests of the child and family life 

into account in removal proceedings.

The European Union (EU) has enacted various legislative measures intended to facilitate legal

migration and to address illegal immigration.1 However, with the exception of asylum seekers,2

it is up to the individual EU Member States to grant specific status rights and to decide who can 

acquire nationality.

3 Nonetheless, irrespective of their immigration status, all immigrants enjoy 

certain fundamental rights, like access to education and health care, derived from international 

human rights treaties, the European Convention on Human Rights (ECHR),4 and the Charter of 

Fundamental Rights of the EU (EU Charter).

5 EU secondary law, meaning legal instruments 

based on the EU Founding Treaties, spells out the rights of illegal migrants to different degrees,

depending on the subject area.

With regard to children in general, article 24 of the EU Charter provides that children’s best 

interests must be a primary consideration in all actions relating to children, whether taken by 

public authorities or private institutions, and that every child has “the right to maintain on a 

regular basis a personal relationship and direct contact with both his or her parents, unless that is 

contrary to his or her interests.” 

The EU Return Directive provides a minimum level of specific fundamental rights for illegal 

third-country nationals in return procedures and for those who are not removed due to legal, 

humanitarian, or actual obstacles.

6 The EU Return Directive explicitly recognizes that it is 

 1 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), art. 79, 2012 O.J. (C 326) 

47, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN, archived at 

http://perma.cc/U5GT-QE3D.

2 Id. art. 78.

3 European Court of Justice (ECJ), Case C-135/08, Janko Rottmann v. Freistaat Bayern, para. 39, http://curia. 

europa.eu/juris/document/document.jsf?text=&docid=75336&pageIndex=0&doclang=en&mode=req&dir=&occ=fir

st&part=1&cid=1553681, archived at http://perma.cc/8SZY-4CCN. 

4 European Convention on Human Rights (ECHR), Nov. 4, 1950, 213 U.N.T.S. 221, http://www.echr.coe.int/ 

Documents/Convention_ENG.pdf, archived at http://perma.cc/L66H-SW6K.

5 Charter of Fundamental Rights of the European Union, 2012 O.J. (C 326) 2, http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN, archived at http://perma.cc/7YQU-NQHJ. 

6 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common 

Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 2008 O.J. 
Laws Concerning Children of Undocumented Migrants: European Union 

The Law Library of Congress 23

legitimate for Member States to return illegally staying third-country nationals.7 However, it 

obliges the Member States to take the best interests of the child and family life into account 

when implementing the Directive.8

 

Citizenship of the EU is granted to every person holding the nationality of an EU Member State, 

but it is additional and does not replace national citizenship.9

 As the granting of national 

citizenship falls within the competence of the individual Member States, no EU legislation deals

with immigration enforcement relief similar to the US DACA program for children of illegal

immigrants. However, a third-country national who is the parent of an EU-citizen minor child 

may rely on a derived right of residence in the EU if the child would otherwise have to leave the 

EU and therefore be deprived of the enjoyment of the substance of the rights attached to 

EU citizenship.

10

(L 348) 98, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:en:PDF, archived at 

http://perma.cc/V96K-72MV. 

7 Id. consideration 8.

8 Id. art. 5.

9 TFEU, supra note 1, art. 20, para. 1.

10 ECJ, Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), para. 45, 

http://curia.europa.eu/juris/document/document.jsf?text=&docid=80236&pageIndex=0&doclang=en&mode=lst&dir

=&occ=first&part=1&cid=1556811, archived at http://perma.cc/9RVA-M7BD; ECJ, Case C-133/15, H.C. ChavezVilchez and Others v. Raad van bestuur van de Sociale verzekeringsbank and Others, http://curia.europa.eu/juris/ 

document/document.jsf?text=&docid=190502&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&ci

d=1557518, archived at http://perma.cc/2UV5-3X8H. 
The Law Library of Congress 24 

France

Nicolas Boring 

Foreign Law Specialist

SUMMARY Under French law, individuals who have been in France since the age of thirteen or 

younger may generally not be deported, and they can qualify for a type of residency permit 

that would allow them to live and work in France, and would make them eligible to apply 

for naturalization.

I. Protection Against Deportation

There are four principal ways in which a non-European foreigner may be deported from France. 

One is through an order to “be taken back to the border” (arrêté de reconduite à la frontière), 

which only applies to persons who have been in France for three months at most, and is therefore 

not relevant to the present discussion.

1

 The three others are the obligation to leave France 

(obligation de quitter la France), which principally applies to persons who reside in France 

illegally;

2 expulsion, which applies to individuals who present a threat to public order;3 and 

“prohibition from being on French territory” (interdiction du territoire français), which applies 

to individuals who have committed certain criminal offenses.4 There are some other procedures, 

such as the deportation of a non-European foreigner to another European Union country,5 but 

they do not appear to be as common as the four main ones cited above, and are not relevant to 

the present discussion. 

1 Arrêté préfectoral de reconduite à la frontière (APRF) [Prefectoral Order to Be Taken Back to the Border 

(APRF)], SERVICE-PUBLIC.FR [Website of the French administrative services] (Apr. 21, 2016), https://www.servicepublic.fr/particuliers/vosdroits/F11954, archived at https://perma.cc/8434-JJ4G. 

2 Obligation de quitter la France (OQTF) [Obligation to Leave France (OQTF)], SERVICE-PUBLIC.FR (Feb. 15, 

2017), https://www.service-public.fr/particuliers/vosdroits/F18362, archived at https://perma.cc/6MWG-XPQ6. 

3 Expulsion d’un étranger: décision et exécution [Expulsion of a Foreigner: Decision and Execution], SERVICEPUBLIC.FR (Feb. 16, 2017), https://www.service-public.fr/particuliers/vosdroits/F11891, archived at 

https://perma.cc/4WTK-8NWD. 

4 Interdiction du territoire français (ITF) [Prohibition from Being on French Territory (ITF)], SERVICE-PUBLIC.FR

(Aug. 3, 2016), https://www.service-public.fr/particuliers/vosdroits/F2784, archived at https://perma.cc/M4K4-

DNQ5. 

5 Éloignement des étrangers [Deportation of Foreigners], SERVICE-PUBLIC.FR, https://www.servicepublic.fr/particuliers/vosdroits/N109 (last visited Sept. 15, 2017), archived at https://perma.cc/QEG5-ZF89. 
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A. Protection Against the Obligation to Leave France

The general rule in France is that a person who does not have the documentation to show that 

he/she is in France legally will be ordered to leave the country.6

 A few exceptions to that rule 

exist, however, including exceptions based on the subject’s age or length of residency in France. 

No one under the age of eighteen may be ordered to leave the country.7 This protection does not 

extend to a minor’s parents, however, so children may be indirectly forced to leave France as a 

consequence of their parents being ordered to leave.8

 

Another exception is that a person—even an adult—who can show by any means that he/she has 

habitually lived in France since the age of thirteen or younger cannot be ordered to 

leave France.9 

B. Protection Against Administrative and Judicial Expulsion

A foreigner can be expelled from France if his/her presence “constitutes a serious threat to public 

order.”10 Certain categories of persons are protected against this type of measure, however, in 

the sense that they may only expelled if their behavior would threaten “the fundamental interests 

of the State;” if they are involved in terrorist activities; or if they acted in such a way as to 

deliberately and explicitly provoke discrimination, hate, or violence against a specific person or 

group of persons.11 Among the categories of persons who can only be expelled under this 

heightened standard are individuals who can show that they have resided habitually in France 

since the age of thirteen or younger.12 Individuals under the age of eighteen cannot be expelled 

at all, even under the abovementioned heightened standard.13

 6 CODE DE L’ENTRÉE ET DU SÉJOUR DES ÉTRANGERS ET DU DROIT D’ASILE [C.E.S.E.D.A.] [CODE OF THE ENTRY AND 

STAY OF FOREIGNERS AND OF THE RIGHT OF ASYLUM] art. L511-1, https://www.legifrance.gouv.fr/affichCode 

Article.do;jsessionid=8B48E7DD919AADF699C28381591D16E9.tpdila08v_3?idArticle=LEGIARTI00003217175

4&cidTexte=LEGITEXT000006070158&dateTexte=20170914, archived at https://perma.cc/2JK2-TQYX. 

7 Id. art. L511-4(1°), https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=B4DC5CB2C359F8 

4EDE6DB4534C37DBEE.tpdila10v_1?idArticle=LEGIARTI000032172264&cidTexte=LEGITEXT000006070158

&dateTexte=20170915, archived at https://perma.cc/7KLP-TW7H.

8 FABIENNE JAULT-SESEKE ET AL., DROIT DE LA NATIONALITÉ ET DES ÉTRANGERS [LAW OF NATIONALITY AND 

FOREIGNERS] 528 (2015).

9 C.E.S.E.D.A. art. L511-4(2°).

10 Id. art. L521-1, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=575C1E731934FB05DCF 

51226F4F70612.tpdila10v_1?idArticle=LEGIARTI000006335207&cidTexte=LEGITEXT000006070158&dateText

e=20170915, archived at https://perma.cc/LZ2Z-SCJD.

11 Id. art. L521-3, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=575C1E731934FB05DCF 

51226F4F70612.tpdila10v_1?idArticle=LEGIARTI000032172257&cidTexte=LEGITEXT000006070158&dateText

e=20170915, archived at https://perma.cc/6JEH-6NYE.

12 Id. art. L521-3(1°).

13 Id. art. L521-4, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=575C1E731934FB05DCF 

51226F4F70612.tpdila10v_1?idArticle=LEGIARTI000006335212&cidTexte=LEGITEXT000006070158&dateText

e=20170915, archived at https://perma.cc/S4JA-QZ6V.
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The decision to expel an individual is an administrative one, generally taken by the prefect who 

has jurisdiction over that individual’s place of residence.14 A similar decision can be taken by a 

judge as part of the sentence for certain criminal offenses.

15 Such a measure is called a 

“prohibition from being on French territory,” and while it is technically distinct from an 

expulsion, it appears in practice to be very similar.16 A prohibition from being on French 

territory may not be issued against a foreigner who can show that he/she has habitually resided in 

France since the age of thirteen or younger.17

II. Residency and Citizenship

Unless his/her presence in France constitutes a menace to public order, an undocumented 

immigrant who arrived in France as a child is eligible for a residency permit.18 To qualify, an 

individual must apply in the year following his/her eighteenth birthday and be able to show, by 

any means, that he/she has resided in France with at least one parent since the age of thirteen.19 

This residency permit authorizes its recipient to work legally in France,20 and it is initially valid 

for one year.21 After that first year, the applicant is eligible for another type of residency permit, 

which is valid for four years and is renewable indefinitely.22

Any child whose parents are foreign but who was born in France can claim French citizenship 

upon reaching the age of eighteen, provided that (a) he/she has lived in France for at least five 

14 Expulsion d’un étranger : décision et exécution [Expulsion of a Foreigner : Decision and Execution], supra

note 3.

15 C.E.S.E.D.A. art. L541-1, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=575C1E731934FB0 

5DCF51226F4F70612.tpdila10v_1?idArticle=LEGIARTI000006335233&cidTexte=LEGITEXT000006070158&da

teTexte=20170915, archived at https://perma.cc/DP5S-5RYH. 

16 Interdiction du territoire français (ITF) [Prohibition from Being on French Territory (ITF)], SERVICE-PUBLIC.FR

(Aug. 3, 2016), https://www.service-public.fr/particuliers/vosdroits/F2784, archived at https://perma.cc/M4K4-

DNQ5. 

17 C.E.S.E.D.A. art. L541-1, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=575C1E731934FB 

05DCF51226F4F70612.tpdila10v_1?idArticle=LEGIARTI000006335233&cidTexte=LEGITEXT000006070158&d

ateTexte=20170915, archived at https://perma.cc/3E7Q-KUFL. 

18 Id. art. L313-11(2°), https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=F11DBF7D89B8BF1671 

4464A68C57F0BA.tpdila10v_1?idArticle=LEGIARTI000032186978&cidTexte=LEGITEXT000006070158&dateT

exte=20170915, archived at https://perma.cc/YYM8-EEEE. 

19 Id.

20 Id. art. L313-12, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=575C1E731934FB05 

DCF51226F4F70612.tpdila10v_1?idArticle=LEGIARTI000032171230&cidTexte=LEGITEXT000006070158&dat

eTexte=20170915, archived at https://perma.cc/W343-8RX5. 

21 Id. arts. L313-11 & L311-1(3°), 

https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=575C1E731934FB05DCF51226F4F70612.tpdila10

v_1?idArticle=LEGIARTI000032171097&cidTexte=LEGITEXT000006070158&dateTexte=20170915, archived at 

https://perma.cc/7K9X-CDS7. 

22 Id. art. L313-17, 

https://www.legifrance.gouv.fr/affichCode.do;jsessionid=575C1E731934FB05DCF51226F4F70612.tpdila10v_1?id

SectionTA=LEGISCTA000032166260&cidTexte=LEGITEXT000006070158&dateTexte=20170915, archived at 

https://perma.cc/4G2H-YUFX. 
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years (continuously or not) after the age of eleven, and (b) he/she resides in France at the time 

he/she turns eighteen.23 There does not appear to be any path to French citizenship that would 

apply specifically to individuals who came to France as children. However, there does not 

appear to be any legal barrier to such individuals acquiring French citizenship through normal 

means of naturalization, so long as they have a legal residency status when they apply.

24

 23 CODE CIVIL [CIVIL CODE] art. 21-7, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid= 

575C1E731934FB05DCF51226F4F70612.tpdila10v_1?idArticle=LEGIARTI000006419826&cidTexte=LEGITEX

T000006070721&dateTexte=20170915, archived at https://perma.cc/4JYX-7VX8.

24 Naturalisation : conditions à remplir [Naturalization: Requirements], SERVICE-PUBLIC.FR (Mar. 17, 2017), 

https://www.service-public.fr/particuliers/vosdroits/F2213, archived at https://perma.cc/B32Z-CAA2.
The Law Library of Congress 28

Germany

Jenny Gesley

Foreign Law Specialist

SUMMARY Foreigners may only enter and stay in Germany if they possess a valid passport and 

residence title. Minor children generally derive their immigration status from their 

parents. However, since an amendment of the Residence Act in 2011, well-integrated 

young people between the ages of fourteen and twenty-one whose deportations have been 

temporarily suspended may apply for a temporary residence permit irrespective of their 

parents’ immigration status. A temporary residence permit will be granted if the juvenile 

or adolescent applies before he or she turns twenty-one; has resided in Germany for four 

years without interruption either legally, because his or her deportation has been 

temporarily suspended, or because permission to stay has been granted pending an asylum 

decision; has successfully attended a German school for four years; appears to be able to 

integrate into the German way of life; and if there is no concrete evidence to suggest that 

the applicant is not committed to the free, democratic basic order of Germany. A

temporary residence permit is valid for a maximum of three years and entitles the 

beneficiary to work.

Only foreigners who have been legally residing in Germany, have not been convicted of a 

crime, have a place to live, and can secure their subsistence may apply for 

German citizenship.

I. General Overview

In the absence of any provisions to the contrary in the law of the European Union (EU) or a 

statutory instrument, foreigners may only enter and stay in Germany if they possess a recognized 

and valid passport and a residence title.

1 Residence titles include visas, temporary residence 

permits, EU Blue Cards, permanent settlement permits, and EU long-term residence permits.

2

Entering or staying in Germany without a passport or residence title is a criminal offense 

punishable by imprisonment of up to one year or a fine.3 Foreigners that do not or no longer 

have a valid residence title are required to leave Germany4 and are subject to deportation if they 

 1 Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet

[Aufenthaltsgesetz – AufenthG] [Act on the Residence, Economic Activity, and Integration of Foreigners in the 

Federal Territory] [Residence Act], Feb. 25, 2008, BUNDESGESETZBLATT [BGBL.] [FEDERAL LAW GAZETTE] I at

162, as amended, §§ 3, 4, http://www.gesetze-im-internet.de/aufenthg_2004/AufenthG.pdf, archived at 

http://perma.cc/KM9J-B4AX, unofficial English translation available at http://www.gesetze-iminternet.de/englisch_aufenthg/englisch_aufenthg.pdf, archived at http://perma.cc/7FKU-XFSK (English version 

updated through Mar. 11, 2016).

2 Id. § 4, para. 1.

3 Id. § 95, para. 1. 

4 Id. § 50.
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do not leave voluntarily.5 However, deportation must be temporarily suspended (known as 

Duldung, or “toleration”) if deporting the foreigner is actually or legally impossible.6 

II. Granting of Temporary Residence to Well-Integrated Juveniles and Adolescents

In general, minor children derive their residence status from their parents; they “share in their 

parents’ immigration fate.”7 However, in 2011, the German Residence Act was amended to 

allow well-integrated juveniles and adolescents whose deportations have been temporarily 

suspended to apply for a temporary residence permit irrespective of their parents’ immigration 

status.

8 In 2015, the provision was amended to ease some of the requirements and strike out the 

requirement that an applicant had to be born in Germany or brought to Germany before the age 

of fourteen to be eligible.

9 The provision states that a juvenile or adolescent foreigner whose 

deportation has been temporarily suspended must be granted a temporary residence permit if 

(1) he or she has resided in Germany for four years without interruption either legally, because

his or her deportation has been temporarily suspended, or because permission to stay has been

granted pending the asylum decision; (2) he or she has successfully attended a German school

for four years; (3) the application is filed before the applicant turns twenty-one; (4) it appears

that he or she will be able to integrate into the German way of life; and (5) there is no concrete

evidence to suggest that the applicant is not committed to the free, democratic basic order of

Germany. The general requirements for a residence title codified in section 5 of the Residence

Act also have to be fulfilled, with the exception that receiving public benefits for the purpose of

ensuring his or her subsistence while attending school does not preclude the granting of the

temporary residence permit.

10

A temporary residence permit enables the applicant to work.11 It may be issued and extended for 

a maximum period of three years.12

As of December 31, 2016, 3,225 temporary residence permits had been granted under section

25a, paragraph 1 of the Residence Act.13

5 Id. §§ 58, 58a.

6 Id. § 60a. 

7

 BUNDESVERWALTUNGSGERICHT [BVERWG] [FEDERAL ADMINISTRATIVE COURT], docket no. 1 C 22.09, para. 45, 

https://www.bverwg.de/entscheidungen/pdf/110111U1C22.09.0.pdf, archived at http://perma.cc/YA69-FCZH. 

8 Residence Act § 25a.

9

 DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE [BT-DRS.] 18/4097, p. 28, http://dipbt.bundestag. 

de/doc/btd/18/040/1804097.pdf, archived at http://perma.cc/TF8K-PF3L. 

10 Residence Act § 25a, para. 1, sentence 2.

11 Id. § 25a, para. 4.

12 Id. § 26, para. 1.

13 BT-DRS. 18/11101, p. 8, http://dipbt.bundestag.de/doc/btd/18/111/1811101.pdf, archived at

http://perma.cc/8JUA-AS2D. 
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A. Juveniles or Adolescents

The provision only applies to juveniles and adolescents who submit an application before they 

turn twenty-one. “Juveniles” are defined as children between the ages of fourteen and eighteen. 

“Adolescents” are young people between the ages of eighteen and twenty-one.

14

B. Temporary Suspension of Deportation

Only juveniles and adolescents whose deportations have been temporarily suspended are eligible 

to apply. A deportation must be temporarily suspended, and the foreigner is “tolerated” in 

Germany, if deportation is actually or legally impossible.15 “Actual impossibility” exists when 

difficulties are encountered in the deportation process that cannot be remedied, or can only be 

remedied with unreasonable effort. That is already the case when deportation cannot be 

executed in a timely manner or when it is uncertain when it will take place.

16 Examples of actual 

impossibility include having no passport and not being able to get one for a foreseeable time; 

unknown citizenship; statelessness; or the impossibility of traveling due to an illness, late-term 

pregnancy, or the like. 

“Legal impossibility” exists when there is a prohibition on deportation based on a statute, 

constitutional law, or international law. Examples include prohibitions of deportation within the 

meaning of section 60 of the Residence Act; missing consent from the public prosecutor’s office

or the Office for the Protection of Witnesses;

17 an ongoing asylum follow-up procedure with no

notification regarding the deportation from the Federal Office for Migration and Refugees;

18 an 

ongoing secondary application for asylum;

19 temporary suspension of deportation for family 

members of foreigners who have filed an asylum application;20 the late filing of an application of 

a legally resident foreigner for a residence title;

21 and rights derived from the German Basic Law 

(Constitution)22 or the European Convention on Human Rights (ECHR),23 in particular article 6 

 14 Jugendgerichtsgesetz [JGG] [Youth Courts Act], Dec. 11, 1974, BGBL. I at 3427, as amended, § 1, para. 2,

http://www.gesetze-im-internet.de/jgg/JGG.pdf, archived at http://perma.cc/9JR2-DHR5, unofficial English 

translation available at http://www.gesetze-im-internet.de/englisch_jgg/englisch_jgg.pdf, archived at 

http://perma.cc/3TCM-Z4QV. 

15 Residence Act § 60a.

16 BUNDESVERFASSUNGSGERICHT [BVERFG] [FEDERAL CONSTITUTIONAL COURT], docket no. 2 BvR 397/02, 

para. 37, http://www.bverfg.de/e/rk20030306_2bvr039702.html, archived at http://perma.cc/LFF2-AEPS. 

17 Residence Act § 72, para. 4.

18 Asylgesetz [AsylG] [Asylum Act], Sept. 2, 2008, BGBL. I at 1798, as amended, § 71, para. 5, sentence 2, 

http://www.gesetze-im-internet.de/asylvfg_1992/AsylG.pdf, archived at http://perma.cc/L6C8-DYXT, unofficial 

English translation available at http://www.gesetze-im-internet.de/englisch_asylvfg/englisch_asylvfg.pdf, archived 

at http://perma.cc/UT4A-JMSX. 

19 Id. § 71a, para. 3.

20 Id. § 43, para. 3.

21 Residence Act § 81, para. 3, sentence 2.

22 GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, 

BGBL. I at 1, http://www.gesetze-im-internet.de/bundesrecht/gg/gesamt.pdf, archived at http://perma.cc/8NFT-
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of the Basic Law (protection of marriage and family) and article 8 ECHR (right to respect for 

private and family life).

The right to respect for private life codified in article 8 ECHR is of particular relevance in cases 

of foreigners who were born in Germany or brought to Germany at a young age. “Private life”

encompasses the network of personal, social, and economic relations that make up the private 

life of every human being, and that become more and more important the longer a person has 

stayed in a country.

24 Any interference by a public authority with the exercise of this right must 

be “in accordance with the law and necessary in a democratic society in the interests of national 

security, public safety or the economic well-being of the country, for the prevention of disorder 

or crime, for the protection of health or morals, or for the protection of the rights and freedoms of 

others.”25 Article 8 ECHR might be violated if a foreigner is deported who has de facto become 

a native, because he or she is so rooted in Germany. Being returned to a country of nationality 

with which he or she has no connection would therefore not be proportionate. Factors to take 

into consideration are economic and social integration into society, immigration status, 

adherence to legal rules, the length and reason for being in Germany, and knowledge of the 

German and foreign languages, among others. The right of the foreigner must be balanced

against the right of Germany to control immigration.26

C. Residency Requirement

At the time of the decision about the application, the applicant must have resided in Germany for 

four years without interruption either legally, because his or her deportation has been temporarily 

suspended, or because permission to stay has been granted pending an asylum decision.

27

Residence based on different legal grounds is cumulative; short periods of departure from 

Germany without changing one’s main center of life are irrelevant. 28

 

SVRZ, unofficial English translation at http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.pdf, archived at

http://perma.cc/AF85-NA4C.

23 European Convention on Human Rights (ECHR), Nov. 4, 1950, 213 U.N.T.S. 221, http://www.echr.coe.int/ 

Documents/Convention_ENG.pdf, archived at http://perma.cc/L66H-SW6K. 

24 BVerfG, docket no. 2 BvR 304/07, para. 33, http://www.bverfg.de/e/rk20070510_2bvr030407.html, archived at

http://perma.cc/4V8V-QYFY. 

25 ECHR, supra note 23, art. 8, para. 2.

26 See, e.g., Oberverwaltungsgericht des Landes Sachsen-Anhalt [Higher Regional Court of the State of SaxonyAnhalt], docket no. 2 L 18/15, para. 60, http://www.landesrecht.sachsen-anhalt.de/jportal/portal/t/1pgd/page/ 

bssahprod.psml?pid=Dokumentanzeige&showdoccase=1&js_peid=Trefferliste&documentnumber=1&numberofres

ults=1&fromdoctodoc=yes&doc.id=MWRE170004680&doc.part=L&doc.price=0.0&doc.hl=1#focuspoint, archived 

at http://perma.cc/JB44-FXQR; BVerwG, docket no. 1 C 8/96, para. 30, https://www.jurion.de/urteile/bverwg/1998-

09-29/1-c-8_96/, archived at http://perma.cc/VLB2-RWML. 

27 Residence Act § 25a, para. 1, no. 1.

28 OVG Lüneburg [Higher Regional Court of Lüneburg], docket no. 8 LA 26/12, para. 8, http://www.recht 

sprechung.niedersachsen.de/jportal/portal/page/bsndprod.psml?doc.id=MWRE120001133&st=null&showdoccase=1

, archived at http://perma.cc/CJ7Q-ABPE. 
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D. Educational Requirement

The applicant must have successfully attended a German school for four years or acquired a 

recognized vocational or graduate qualification.

29 A school has been “successfully” attended if 

the applicant attended regularly and his or her grades were good enough to advance to the next 

school year or to graduate.30

E. Integration

In addition, there needs to be a positive integration prognosis based on the child’s education and 

way of life to date.31 Four years of successful school attendance generally indicates that the child 

will be able to integrate into society. Criminal convictions generally prevent a positive prognosis, 

but are judged on a case-by-case basis.

32

F. Loyalty to the German Basic Law

No express statement of commitment is necessary; the absence of indications that the applicant is 

not committed to the free, democratic basic order is sufficient.33 Being well-integrated into 

society generally indicates that the applicant supports the free democratic order.34

G. Exclusions

A temporary residence permit will not be granted if deportation has been suspended on the basis 

of false information furnished by the applicant or because the applicant lied about his or her 

identity or nationality.

35 However, deceptive actions by the parents will not be imputed to 

the applicant.36 

29 Residence Act § 25a, para. 1, no. 2.

30 BT-DRS. 18/4097, supra note 9, at 42.

31 Residence Act § 25a, para. 1, no. 4.

32 BT-DRS. 17/5093, p. 15, http://dipbt.bundestag.de/doc/btd/17/050/1705093.pdf, archived at 

http://perma.cc/A8AA-SHJK; OVG Lüneburg [Higher Regional Court Lüneburg], docket no. 8 LB 5/11, paras. 77 

& 78, http://www.rechtsprechung.niedersachsen.de/jportal/?quelle=jlink&docid=MWRE120001435&psml= 

bsndprod.psml&max=true, archived at http://perma.cc/RFZ5-LSNC (where the court gave the applicant a positive 

integration prognosis despite a juvenile conviction for simple assault for pulling another girl’s hair, because the 

court held it to be a typical one-time youthful transgression between minors of the same age that did not result in any 

serious harm).

33 Residence Act § 25a, para. 1, no. 5; BT-Drs. 18/4097, supra note 9, p. 29.

34 Ralph Göbel-Zimmermann, §25a AufenthG, in AUFENTHALTSGESETZ [RESIDENCE ACT] 280, para. 15 (Bertold 

Huber ed., 2d ed. 2016). 

35 Residence Act, § 25a, para. 1, sentence 3.

36 BT-DRS. 17/5093, supra note 32, p. 16; BVerwG, docket no. 1 C 17.12, paras. 16 & 17, http://www.bverwg. 

de/entscheidungen/pdf/140513U1C17.12.0.pdf, archived at http://perma.cc/ZP4C-9ZWN. 
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H. Temporary Residence Permit for Parents/Spouses of Well-Integrated Minors and 

Adolescents

The parents (or the parent possessing the right of care and custody) of a foreign minor who has 

been granted a temporary residence permit may also be granted temporary residence permits if 

they fulfill the following additional requirements:

• The temporary suspension of deportation must not have been caused by them because they 

provided false or deceptive information with regard to their identity and nationality or 

because they failed to meet reasonable demands to eliminate obstacles to their departure. 

• In addition, they must be able to earn a living, including purchasing adequate health 

insurance coverage, without recourse to public funds.

37

The same considerations apply to spouses and domestic partners who live with the beneficiary.38

Minor siblings of the beneficiary or other minor children of the parents may also be granted a 

temporary residence permit if they live together in a family unit.39 

The decision to grant such temporary resident permits is discretionary.40 A temporary residence 

permit will not be granted if the parents or spouses have been convicted of a serious intentional 

crime in Germany.

41 Fines of up to fifty daily rates, or up to ninety daily rates in the case of 

offenses that can only be committed by foreigners, are not taken into account.42

If the additional requirements for receiving a temporary residence permit are not fulfilled and as 

long as the beneficiary is still a minor, the deportation of the parents and the minor children who 

live with them as a family unit must be suspended.

43

III. Acquisition of Citizenship

A foreigner who legally resides in Germany, has not been convicted of a crime, has a place to 

live, and can secure his or her subsistence may apply for German citizenship.44 This provision is 

a discretionary norm and the request for citizenship will be granted if there is a public interest in 

the naturalization of the applicant. The criteria are integration into German society; sufficient 

 37 Residence Act § 25a, para. 2.

38 Id.

39 Id.

40 Id. (“may be granted . . . ”).

41 Id. § 25a, para. 3.

42 Id.

43 Id. § 60a, para. 2b.

44 Staatsangehörigkeitsgesetz (StAG) [Nationality Act], July 22, 1913, REICHTSGESETZBLATT [RGBL.] [IMPERIAL 

LAW GAZETTE] I at 583, as amended, § 8, http://www.gesetze-im-internet.de/rustag/StAG.pdf, archived at 

http://perma.cc/ZFD6-GDH3, unofficial English translation available at http://www.gesetze-im-internet.de/ 

englisch_rustag/englisch_rustag.pdf, archived at http://perma.cc/9QJD-67BA. 
Laws Concerning Children of Undocumented Migrants: Germany 

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knowledge of the German language; length of residence; legality of residence; and commitment 

to the free, democratic basic order of Germany, among others.45

45 Allgemeine Verwaltungsvorschrift zum Staatsangehörigkeitsrecht (StAR-VwV) [General Administrative 

Regulation Regarding Nationality Law], Dec. 13, 2000, no. 8.1.2, http://www.verwaltungsvorschriften-iminternet.de/bsvwvbund_13122000_V612400513.htm, archived at http://perma.cc/AV5X-3UP8. 
The Law Library of Congress 35

India

Tariq Ahmad

Foreign Law Specialist

SUMMARY Illegal migrants are excluded from the acquisition of citizenship through birth, 

registration, or naturalization in India. There is no program to grant illegal migrants or 

their children legal status or citizenship. 

I. Introduction

In India, the entry, stay, and exit of foreign nationals are primarily regulated by the Passport Act 

1920,

1 the Foreigners Act 1946,2 and the Registration of Foreigners Act 1939.3

 Citizenship 

requirements and pathways are predominantly regulated by the Indian Constitution4 and the 

Citizenship Act, 1955.5 The Foreigners Division of the Ministry of Home Affairs (MHA) 

administers all matters, including policies, statutes, and rules, related to visas, immigration, 

citizenship, and “overseas citizenship.”6

II. Illegal Migrants and Legal Status

India does not appear to have a system of permanent residency or green cards comparable to the 

United States. Only persons of Indian origin are allowed to live and work in India on a 

permanent basis through the Overseas Citizenship of India (OCI) program. More recently, the 

government of India has introduced a program for permanent residency status for

foreign investors.7

 1 Passport (Entry into India) Act, No. 34 of 1920, available at http://www.mha.nic.in/sites/upload_files/mha/ 

files/pdf/PptEntryAct1920.pdf, archived at https://perma.cc/XL8M-6PSZ. 

2 Foreigners Act, No. 31 of 1946, http://www.mha.nic.in/pdfs/The%20Foreigners%20Act,%201946.pdf, archived at

https://perma.cc/E2YS-3N5T. 

3 Registration of Foreigners Act, No. 16 of 1939, http://www.mha.nic.in/sites/upload_files/mha/files/pdf/The_ 

Registration_of_Foreigners_Act_1939.pdf, archived at https://perma.cc/QPM4-733J. 

4 INDIA CONST. arts. 5–11, http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm, archived at

https://perma.cc/P36S-KCWU. 

5 Citizenship Act, No. 57 of 1955, http://mha.nic.in/sites/upload_files/mha/files/pdf/ic_act55.pdf, archived at

https://perma.cc/2838-GM72. 

6 About Foreigners Division, MINISTRY OF HOME AFFAIRS – FOREIGNERS DIVISION, http://mha1.nic.in/foreigDiv/

abtDiv.html (last visited Sept. 16, 2017), archived at https://perma.cc/HY5N-WCBT.

7 Press Release, Government of India, Cabinet, Cabinet Approves Grant of Permanent Residency Status to Foreign 

Investors (Aug. 31, 2016), http://pib.nic.in/newsite/PrintRelease.aspx?relid=149376, archived at

https://perma.cc/3ER9-4HRT.
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There is no evidence that the Indian government provides residency permits or visas (at least on 

an organized basis) to illegal migrants or their children. However, a recent news report 

indicated that,

[i]n September 2015 and July 2016, the central government exempted certain groups of 

illegal migrants from being imprisoned or deported. These are illegal migrants who came 

into India from Afghanistan, Bangladesh or Pakistan on or before December 31, 2014, 

and belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities. 

Illegal migrants from this group cannot be imprisoned or deported for not having valid 

travel documents.8

III. Illegal Migrants and Citizenship

Under current law, Indian citizenship is largely determined by the rule of jus sanguinis

(citizenship of the parents) as opposed to jus soli (place of birth), and India “provides for a single 

citizenship for the whole of India.”9 A person can be a citizen by birth, descent, registration, 

or naturalization.10

Under the Citizenship Act an “illegal migrant” is defined as a foreigner who has entered 

into India—

(i) without a valid passport or other travel documents and such other document or 

authority as may be prescribed by or under any law in that behalf; or

(ii) with a valid passport or other travel documents and such other document or 

authority as may be prescribed by or under any law in that behalf but remains 

therein beyond the permitted period of time[.]11

An illegal migrant is excluded from the acquisition of citizenship through birth, registration, or 

naturalization. There is no program to grant citizenship to illegal migrants or their children. 

The children of illegal migrants cannot acquire citizenship by birth if they were born on or after 

December 3, 2004. According to the 1955 Act, a person born in India on or after January 26, 

1950, and before July 1, 1987, was a citizen by birth “irrespective of the nationality of his 

parents.”12 A person born in India on or after July 1, 1987, but before December 3, 2004, was 

“considered a citizen of India by birth if either of his parents [was] a citizen of India at the time 

 8 Anviti Chaturvedi, Simply Put: Understanding Issues of Illegal Migration in New Citizenship Bill, INDIAN 

EXPRESS (Oct. 25, 2016), http://indianexpress.com/article/explained/understanding-issues-of-illegal-migration-innew-citizenship-bill-3101213/, archived at https://perma.cc/3ZR6-JZXJ. 

9 Citizenship, KNOW INDIA, http://knowindia.gov.in/profile/citizenship.php (last visited Sept. 19, 2017), archived at

https://perma.cc/YJ77-XC2A. 

10 TARIQ AHMAD, CITIZENSHIP PATHWAYS AND BORDER PROTECTION: INDIA (Law Library of Congress, Mar. 2013), 

https://www.loc.gov/law/help/citizenship-pathways/india.php, archived at https://perma.cc/8V9K-MPWT. 

11 Citizenship Act § 2(1)(b). 

12 Acquisition of Indian Citizenship (IC), MINISTRY OF HOME AFFAIRS – FOREIGNERS DIVISION, http://indiancitizen 

shiponline.nic.in/acquisition1.htm (last visited Sept. 19, 2017), archived at https://perma.cc/D8XX-MQLF; see also 

Citizenship Act § 3(a).
Laws Concerning Children of Undocumented Migrants: India 

The Law Library of Congress 37

of his birth.”13 A person born in India on or after December 3, 2004, is considered citizen of 

India by birth only “if both the parents are citizens of India or one of the parents is a citizen of 

India and the other is not an illegal migrant at the time of his birth.”14

In India, citizenship by naturalization can be acquired by “a foreigner (not illegal migrant) who 

is ordinarily resident in India for twelve years (throughout the period of twelve months 

immediately preceding the date of application and for eleven years in the aggregate in the 

fourteen years preceding the twelve months).”15 Similarly, for citizenship through registration 

the Citizenship Act stipulates that “the Central Government may, on an application made in this 

behalf, register as a citizen of India any person not being an illegal migrant . . . .”16

In terms of citizenship by descent, a person born outside of India to an Indian citizen parent on or 

after December 3, 2004, is not 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.”17

IV. Special Instances

A. Assam Accord

In 1985, the central and state governments of India signed an accord with leaders of a movement 

that arose in opposition to the influx of “foreigners” from East Pakistan (what today is known as 

Bangladesh) in the state of Assam as a result of the the breakup of Pakistan.

18 Pursuant to the 

Assam Accord, a special provision known as section 6A was inserted into the Citizenship Act, 

1955, which regularized or granted citizenship to foreigners from Bangladesh within a certain 

time period and excluded others. According to Constitutional Lawyer Gautam Bhatia,

[s]ection 6A of the Citizenship Act – introduced through an amendment in 1985 – was

the legislative enactment of the legal part of the Assam Accord. Section 6A divided

“illegal” immigrants of Indian origin (i.e., those whose parents or grandparents were born

in undivided India) who came into Assam from Bangladesh into three groups: those who

came into the state before 1966; those who came into the state between 1966 and 25th

March, 1971 (the official date of the commencement of the Bangladesh War); and those

who came into the state after 1971. The first group (pre-’66) was to be regularised. The

second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten

13 Acquisition of Indian Citizenship (IC), supra note 7 (construing Citizenship Act § 3(b)).

14 Id. (construing Citizenship Act § 3(c)) (emphasis added). 

15 Id. (emphasis added). 

16 Citizenship Act § 5(1) (emphasis added). 

17 Acquisition of Indian Citizenship (IC), supra note 7 (construing Citizenship Act § 4). For information on 

citizenship by descent for persons born prior to December 3, 2004, see AHMAD, supra note 10. 

18 Niraja Gopal Jayal, Citizenship, in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 171–72 (Sujit 

Choudhry et al. eds., 2016). 
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years. The third group (’71-onwards) was to be detected and expelled in accordance 

with law.19

B. The Citizenship (Amendment) Bill, 2016

On July 19, 2016, a controversial amendment Bill,

20 the Citizenship (Amendment) Bill, 2016,21

was introduced in the Lok Sabha, India’s lower house of Parliament, and is currently under 

consideration by a joint parliamentary committee. The amendment seeks to exclude “persons 

belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and

Christians from Afghanistan, Bangladesh and Pakistan,”22 from the definition of “illegal 

migrant” in the Citizenship Act, in order to allow persons from these communities to be eligible 

for Indian citizenship. The Amendment Bill would also relax the eleven-year “aggregate period 

of residence” requirement for citizenship by naturalization to six years for persons from 

these communities.

23

 19 Gautam Bhatia, The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer, INDIAN 

CONSTITUTIONAL LAW AND PHILOSOPHY (May 7, 2017), https://indconlawphil.wordpress.com/2017/05/07/theconstitutional-challenge-to-s-6a-of-the-citizenship-act-assam-accord-a-primer/comment-page-1/, archived at 

https://perma.cc/77MG-TN4S. 

20 Lovish Garg, If India Wants to Remain Secular, the New Citizenship Bill Isn’t the Way to Go, THE WIRE (Sept. 21, 

2016), https://thewire.in/67272/citizenship-amendment-bill-2016/, archived at https://perma.cc/9M72-NFT4. 

21 Citizenship (Amendment) Bill, No. 172 of 2016, http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/ 

172_2016_LS_ENG.pdf, archived at https://perma.cc/RP2K-YLTS. 

22 Id. § 2.

23 Id. § 4
The Law Library of Congress 39

Israel

Ruth Levush 

Senior Foreign Law Specialist

SUMMARY Children born in Israel do not acquire citizenship automatically based on birth. Children 

of persons who do not have legal residence in Israel, whether born in or outside of Israel, 

are generally not eligible for resident status independent of their parents. 

A temporary, one-time arrangement approved by the Israeli government in 2005 and 

amended in 2006 allowed the children of persons who entered Israel legally but overstayed 

their visas to qualify for permanent residence if they were assimilated into Israeli society 

and culture, were present in Israel and had been living in it continuously for at least six 

years, and had entered Israel before their fourteenth birthday. Additional requirements for 

qualification included fluency in Hebrew and completion of the first grade or a higher 

grade in Israel. Those who were granted permanent residence under this program may

later be granted Israeli citizenship if they are present in Israel, are believed by the Minister 

of Interior to “identify with the State of Israel and its objectives,” and serve or have family 

members who served on active duty in the Israel Defense Forces. 

Regardless of whether they have resident status, the children of persons who do not have 

legal residence in Israel are entitled to certain health, social, and educational benefits in 

accordance with Israeli law and government programs. A special arrangement for private 

health insurance partially funded by the state applies to such children. 

I. Introduction

Birth in Israel does not by itself bestow a right to Israeli citizenship.1 Children born in Israel to

nonresident foreign nationals, therefore, cannot acquire Israeli citizenship by birth alone. Nor 

can they be naturalized, as they do not comply with the naturalization requirement of being 

eligible for permanent residence.2 The resident status of children who entered Israel after birth is 

generally tied to that of their parents.

Children in Israel who do not have legal resident status include those who were born in Israel as 

well as those who arrived legally but overstayed their visas, or those who arrived illegally, 

crossing undesignated border crossings.

3

 Two main groups are recognized: the children of 

foreign workers, mainly caregivers from the Philippines who entered the country based on a 

1 Nationality Law, 5712-1952, § 4, SEFER HAHUKIM [SH] [BOOK OF LAWS (official gazette)] 5712, No. 95, p. 146, 

as amended. 

2 Id. § 5. 

3

 NETA MOSHE, KNESSET INFORMATION AND RESEARCH CENTER (KIRC), EDUCATION SYSTEM SERVICES FOR THE

POPULATION OF CHILDREN OF FOREIGNERS WITHOUT CIVIL STATUS 3 (Jan. 23, 2014), https://www.knesset. 

gov.il/mmm/data/pdf/m03357.pdf (in Hebrew), archived at https://perma.cc/528K-VGDY. 
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valid work visa but overstayed, and the children of “infiltrators” and asylum-seekers whose entry 

was not authorized.

4

As a signatory to the Convention on the Rights of the Child,

5 Israel is committed to providing

minors staying within its territory basic rights, including the right to an education, health care,

and social welfare.6 These requirements are implemented through domestic legislation and a 

variety of private and governmental programs.

After discussing the legal status of “infiltrators,” this report describes an exceptional, one-time 

program offered in 2006 for granting legal residence to children and families of foreigners who 

entered Israel legally but overstayed their visas. It provides information on a possible path to 

citizenship for those qualified under this program. The report also addresses social and 

economic benefits enjoyed by all children who do not have legal resident status in Israel.

II. Legal Status of “Infiltrators”

In accordance with Law for the Prevention of Infiltration, 5714-1954, an “infiltrator” is a 

nonresident who entered Israel through an undesignated land crossing as determined by the 

Minister of Interior.

7 Tens of thousands of African migrants entered Israel illegally via 

undesignated land crossings from Egypt between 2006 and 2016. Most of these migrants were 

Eritrean and Sudanese nationals claiming to have escaped political persecution in their 

countries.8 At the end of 2016 there were 37,016 “infiltrators” in Israel, not including children 

born to them. 

According to Israeli military sources the number of individuals unlawfully entering Israel 

through its border with Egypt has greatly declined due to the construction of a barrier on the 

border with Egypt.9 A Knesset report provides that there were only eighteen successful attempts 

to illegally cross the border in 2016.10

Only a small number of the Eritrean or Sudanese “infiltrators” in Israel have received refugee 

status; the remainder are subject to a policy of temporary nonremoval. Some of these

 4 Id. For a definition and discussion of applicable rules for “infiltrators,” see discussion, infra.

5 Convention on the Rights of the Child, Nov. 20, 1989, http://www.ohchr.org/Documents/Professional 

Interest/crc.pdf, archived at https://perma.cc/383L-4SRJ.

6 MOSHE, EDUCATION SYSTEM SERVICES, supra note 3, at 4.

7 Law for the Prevention of Infiltration (Offenses and Jurisdiction), 5714-1954, §1, SH 5714, No. 161, p. 160, 

as amended.

8 For further information, see RUTH LEVUSH, REFUGEE LAW AND POLICY: ISRAEL (Law Library of Congress, Mar. 

2016), https://www.loc.gov/law/help/refugee-law/israel.php, archived at https://perma.cc/3YPL-5QNN.

9 Anna Ahronheim, Israel Completes Heightened Egypt Border Fence, JERUSALEM POST (Jan. 18, 2017), 

http://www.jpost.com/Israel-News/Israel-completes-heightened-Egypt-border-fence-478840, archived at

https://perma.cc/8ZMF-4K2Y.

10 NETA MOSHE, KIRC, INCLUSION OF NON-REMOVABLE FOREIGNERS IN THE HEALTH BASKET – COST ESTIMATE 2

(Mar. 19, 2017), https://www.knesset.gov.il/mmm/data/pdf/m03926.pdf (in Hebrew), archived at 

https://perma.cc/ZVZ4-K8TF.
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“nonremovable foreigners” (NRFs) have stayed in Israel ten years or longer.11 Although not 

afforded legal resident status, NRFs and their children enjoy certain benefits, including health 

care and education.12

The impact of the presence of NRFs on public security and on the state budget has been the 

subject of a review by the State Comptroller’s Office.13 A focus of continuous public debate, the 

nonremoval of “infiltrators” and their children, and the conditions of their stay in Israel, has been 

reviewed by various Knesset committees and by the Supreme Court.

14

III. Residence and Path to Citizenship for Children of Persons Who Overstayed

Their Visas

As noted, the children of persons who do not have legal residence in Israel are not eligible for 

such status independent of their parents. In 2005, however, the government issued a limited,

one-time temporary arrangement, amended in 2006, whereby the children of persons who 

entered Israel legally but overstayed their visas could apply for resident status under the 

Temporary Arrangement for Grant of Status for Children of Illegal Residents, Their Parents and 

Siblings Who are Staying in Israel (TAGS).

15 The implementation of TAGS resulted in the grant 

of permanent residence to 500 out of 827 applicants.16

As legal residents, those who qualified for residency under TAGS could in principle later be 

granted citizenship, under conditions specified in the Nationality Law, 5712-1952, if they or their 

family members served in the Israel Defense Forces (IDF).17

A. Conditions for Grant of Permanent Residence under TAGS

TAGS provided permanent residence to a select group of children of persons who entered Israel 

lawfully but outstayed their visas. As expressly stated in the 2006 Government Decision 

announcing TAGS, this was a temporary, one-time arrangement that did not reflect any change 

in the Israeli government position with regard to immigration.18 The Government Decision 

implementing TAGS provided as follows:

 11 Id.

12 For information on the law governing refugees and “infiltrators,” see LEVUSH, supra note 8.

13 STATE COMPTROLLER AND OMBUDSMAN OF ISRAEL, NON-REMOVABLE FOREIGNERS: ANNUAL REPORT 64C FOR 

2012–13, http://www.mevaker.gov.il/he/Reports/Pages/248.aspx (in Hebrew), archived at https://perma.cc/AAN4-

XGTU. 

14 See, e.g., Adm. App. 8101/15 Tsagata v. Minister of Interior (Supreme Court, Aug. 28, 2017), 

http://elyon1.court.gov.il/files/15/010/081/c29/15081010.c29.pdf (in Hebrew), archived at https://perma.cc/39JK8BM5.

15 TAGS, Government Decision No. 156 (June 18, 2006), http://www.pmo.gov.il/Secretary/GovDecisions/2006/ 

Pages/des156.aspx (in Hebrew), archived at https://perma.cc/6C2B-DGW7.

16 Ministry of Interior Arranges Status of Children of Illegal Residents, GLOBES (June 18, 2007), http://www.globes. 

co.il/news/article.aspx?did=1000222748 (in Hebrew), archived at https://perma.cc/438G-Q5CU.

17 Nationality Law, 5712-1952, § 9, SH 5712, No. 95, p. 146, as amended.

18 TAGS, supra note 15, § C.
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A. The Minister of Interior is authorized to grant a license for permanent residence in 

Israel to the children of illegal residents, who have assimilated into Israeli society 

and its culture (hereafter: “the child”) upon their request, as long as they have 

fulfilled all the following conditions:

1) At the time of adoption of this decision the child is present in Israel and has been 

living in it continuously for a period of at least 6 years, as long as she/he has 

entered Israel before the age of 14 . . . .

2) The child’s parents entered Israel lawfully under a permit and a license under the 

Entry into Israel Law, 5712-1952, prior to the date of [the child’s] birth or entry

into Israel.

3) The child speaks the Hebrew language.

4) At the time of adoption of this decision the child has been studying in first grade 

or a higher grade in a school in Israel, or has graduated from his/her said studies.

5) To meet the requirements of this arrangement the requesters will be required to 

produce clear evidence to substantiate their request, including by way of a hearing, 

and including production of documentation regarding their place of residence in 

Israel, the date of entry into or birth in Israel, and the place of education in Israel.

B. The Minister of Interior may bestow a license for temporary residence in Israel to 

the child’s parents and siblings, as long as those [persons] have resided with 

him/her in a joint household in Israel consecutively from the date of his/her birth or 

entry into Israel and are present in Israel at the time of adoption of this decision. 

A short exit for a visit outside of Israel shall not constitute a break in continuous 

[stay] for purposes of this provision.

In the absence of any other reason the temporary residence permit of [the child’s] 

family members . . . will be extended on an annual basis until the child has 

reached the age of 21. At this time they will be able to request a permit for 

permanent residence, as long as their status has not been regulated as part of the 

decisions of the Ministerial Committee . . . regarding a grant of status for both 

parents of a soldier.19

TAGS did not apply to persons regarding whom there were criminal or security concerns.20

B. Path to Citizenship for TAGS Beneficiaries 

Those who were granted permanent residence under TAGS may be granted Israeli citizenship if 

they are present in Israel, are believed by the Minister of Interior to “identify with the State of 

Israel and its objectives,” and serve or have family members who have served in active duty in 

the Israel Defense Forces.

21

 19 Id. §§ A & B (translation and emphasis by author, R.L.). 

20 Id. § C.

21 Nationality Law, 5712-1952, § 9, SH 5712, No. 95, p. 146, as amended.
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IV. Health Care Services 

A. General Services

Every legal resident in Israel is insured under the National Health Insurance Law, 5754-1994

(NHIL).

22 Not recognized as residents, NRFs are not covered under the NHIL but are entitled to 

emergency care in accordance with the Patient’s Rights Law, 5756-1996.

23 NRFs reportedly 

receive emergency hospital care, including medical care in emergency rooms and hospitalization 

in urgent cases, including surgeries, births, and intensive care for premature babies.24

Additional services freely provided to NRFs include

• abortions for minors and rape victims,

• well-visits for mothers and babies in infants’ clinics,

• routine immunizations and development follow-ups for babies,

• treatment of sexually transmitted diseases in the Tel-Aviv Levinsky Clinic,

• diagnosis and care for tuberculosis,

• medical care for victims of human trafficking,

• medical care for those staying in the Holot NRFs facility,

• a community program for treatment of HIV/AIDS, and

• dialysis and medication treatment for diabetes patients.25

Two additional clinics designated for “foreigners” operate in Tel-Aviv, where a large community 

of NRFs resides, with partial funding from the Ministry of Health. One of those clinics 

specializes in mental health.26

Privately funded services for foreigners are also operating in Israel. These include a clinic 

operated by Physicians for Human Rights, hospital funds that support medical treatment to 

foreigners, and private doctors who provide care on a voluntary basis. Private health insurance 

policies may also be available.27

 22 National Health Insurance Law, 5754-1994, §3, SH 5754, No. 1469, p. 156, as amended.

23 Patient’s Rights Law, 5756-1996, SH 5756, No. 1591, p. 327, § 3, as amended.

24 MOSHE, INCLUSION OF NON-REMOVABLE FOREIGNERS IN THE HEALTH BASKET, supra note 10, at 2.

25 Id. at 3. 

26 Id. 

27 Id. at 4.
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B. Health Insurance for Minors through the United Health Fund

As noted, the children of foreigners, including those born to NRFs, enjoy free, routine well-visits 

and immunizations. Under a voluntary agreement with United Health Fund, one of the licensed 

public health funds permitted to provide health services under the NHIL, parents may acquire 

insurance for their children. This includes NRFs or other foreigners whose stay in Israel is 

unauthorized, such as foreign workers and tourists whose visas have expired. In accordance with 

data provided by the Ministry of Health, at the end of 2016 there were 6,772 nonresident minors 

insured under this arrangement.28

In accordance with the arrangement with United Health Fund, in 2016 the cost for a policy for a 

minor was 280 New Israeli Shekels (NIS) (approx. US$80), with parents having to pay NIS 120 

(approx. US$34) to NIS 240 (approx. US$68), and the Ministry of Health adding NIS 160 

(approx. US$45). The Ministry pays in full beginning with the third child.29 Minors insured 

under this arrangement are entitled to almost identical services given to Israeli residents under 

the National Health Insurance Law, excluding services provided abroad, with receipt of medical 

care requiring a copay similar to the one required from all residents.30

V. Educational Services 

All children living in Israel, including the children of foreign workers, are entitled to education 

in accordance with the Compulsory Education Law, 5709-1949, regardless of the resident status 

of their parents.31 Children of NRFs are not entitled to remedial lessons, however.

32

 28 Id. 

29 Id. at 4–5 (citing information received from the Ministry of Health).

30 Id. at 5.

31 Compulsory Education Law, 5709-1949, SH No. 26, p. 287, as amended.

32 For challenges faced by local municipalities with NRFs population see MOSHE, EDUCATION SYSTEM SERVICES,

supra note 3.
The Law Library of Congress 45

Italy

Dante Figueroa

Senior Legal Information Analyst

SUMMARY No specific legal or regulatory provisions addressing the particular situation of 

undocumented persons who were brought into Italy as minors were found. Such persons 

are subject to the general rules concerning the granting of residence permits and the 

acquisition of Italian citizenship. According to the circumstances, certain of such persons 

may acquire Italian citizenship automatically (by reason of descent from Italian citizens, 

abandonment in the country, judicial recognition, or adoption). Foreign unaccompanied 

minors are subject to special rules concerning the issuance of residence permits. 

Otherwise, the general rules allowing the government to grant Italian citizenship by decree

to stateless persons or to those who have resided legally in the country for the required 

statutory period may apply. 

I. Acquisition of Italian Citizenship by Foreigners

A. Applicable Legislation

Currently, the acquisition, loss, and reacquisition of Italian citizenship is regulated by Law No. 

91 of 19921 and its implementing regulations (Decree No. 572 of 1993,

2 Decree No. 362 of 

1994,

3 and Legislative Decree No. 286 of July 25, 19984

), and most recently by Law No. 47 of 

2017.

5 This legislation specifically addresses the acquisition of Italian citizenship by several 

 1 Legge 5 febbraio 1992, n. 91 Nuove norme sulla cittadinanza [Law No. 91 of February 5, 1992, New Rules on 

Citizenship], GAZZETTA UFFICIALE [G.U.] No. 38, Feb. 15, 1992, up-to-date version available at 

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1992-02-05;91!vig, archived at https://perma.cc/S3KXZUQA.

2 Decreto del Presidente della Repubblica di 12 ottobre 1993, n. 572, Regolamento di esecuzione della legge 5 

febbraio 1992, n. 91, recante nuove norme sulla cittadinanza [Decree of the President of the Republic of October 12, 

1993, No. 572, Regulations for the Implementation of Law No. 91 of February 5, 1992, Concerning New Rules on 

Citizenship], G.U. No. 2, Jan. 4, 1994, http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.del.presidente. 

della.repubblica:1993-10-12;572!vig, archived at https://perma.cc/X33R-V534.

3 Decreto del Presidente della Repubblica di 18 aprile 1994, n. 362, Regolamento recante disciplina dei procedimenti 

di acquisto della cittadinanza italiana [Decree of the President of the Republic of April 18, 1994, No. 362, 

Regulations on Procedures for the Acquisition of Italian Citizenship], G.U. No. 136, June 13, 1994, 

http://www.normattiva.it/atto/caricaDettaglioAtto?atto.dataPubblicazioneGazzetta=1994-06-13&atto.codice 

Redazionale=094G0368, archived at https://perma.cc/ZF3K-U6XM.

4 Decreto Legislativo 25 luglio 1998, n. 286 Testo unico delle disposizioni concernenti la disciplina 

dell'immigrazione e norme sulla condizione dello straniero [Legislative Decree No. 286 of July 25, 1998, Single 

Text of the Provisions concerning Immigration and the Condition of Aliens], G.U. Aug. 18, 1998, No. 191, 

www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:1998-07-25;286!vig, archived at

https://perma.cc/S6K9-MKAG.
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categories of persons, among them, by foreigners who wish to become Italian citizens.

6 This 

legislation also deals with the granting of residence permits. 

No legislation specifically addressing the situation of children who were brought into Italy 

outside of the regular immigration process was found. Provisions related to the acquisition of

Italian citizenship which may be relevant to persons who were brought into Italy illegally are

reviewed below. 

B. Automatic Acquisition of Italian Citizenship

Minors brought into the country outside of the regular immigration process may automatically 

acquire Italian citizenship in any of the following situations:

• When they descend from an Italian citizen7 (minor children living with their parents when 

the parents acquire or reacquire Italian citizenship also automatically acquire citizenship);

8

• When they have been abandoned in the Italian territory and their citizenship is impossible 

to determine;9

• By voluntary or judicial recognition of filiation by/with an Italian citizen10 (adult children 

have a right to opt for Italian citizenship within one year from recognition of their filiation);

11

• Through adoption by an Italian parent or through an adoption made overseas that is 

recognized under Italian laws12 (adopted adult children have a right to opt for Italian 

citizenship after five years of legal residence in Italy from the date of adoption).13

II. Special Situation of Unaccompanied Foreign Minors

Recently, Law No. 47 of 2017 was enacted to protect foreign minors who enter Italy without an 

adult by recognizing the same rights for them that Italian and European Union minors have, due 

to their particular situation of vulnerability.14 A foreign unaccompanied minor is defined as a 

 5 Legge 7 aprile 2017, n. 47 Disposizioni in materia di Misure di Protezione dei Minori Stranieri non Accompagnati

[Law No. 47 of April 7, 2017, Provisions concerning the Protection of Unaccompanied Foreign Minors], G.U. No. 

93, Apr. 21, 2017, http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2017-04-07;47!vig, archived at

https://perma.cc/WXT5-5S5V.

6 See Cittadinanza [Citizenship], MINISTERO DEGLI AFFARI ESTERI, http://www.esteri.it/MAE/IT/Italiani_nel_ 

Mondo/ServiziConsolari/Cittadinanza.htm (last visited Sept. 14, 2017), archived at https://perma.cc/H5SP-P7U4.

7 Law No. 91 of 1992, art. 1(1)(a).

8 Id. art. 2(1).

9 Id. art. 1(2).

10 Id. art. 2(1).

11 Id. art. 2(2).

12 Id. art. 3(1).

13 Id. art. 9(1)(b).

14 Law No. 47, art. 1(1).
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minor who is not an Italian or EU citizen who, for whatever reason, is found in Italian territory or 

is subject to Italian jurisdiction, and who lacks the assistance or representation of his/her parents 

or other adults who would be responsible for him/her according to Italian legislation.15 Foreign 

unaccompanied minors may never be rejected at the border, and refoulement and expulsion are 

prohibited.16 When a foreign unaccompanied minor first comes into contact with a government 

official, an inquiry must be made to determine the personal and family history of the minor in 

order to adopt the best protective measures.17

Residence permits may be issued to foreign unaccompanied minors for reasons of study or

access to employment/self-employment at the age of majority (eighteen), provided that no 

decision to the contrary has been made by the Committee for Foreign Minors created by 

Legislative Decree No. 286 of 1998,18 when such minors have been admitted for a period of not 

less than two years in a social and civil integration project managed by a public or private entity 

with national representation, and have been registered in a special registry established by the law 

for residence permits for minors under care up to the age of majority.19

In these cases, the local city administrator (questore) must grant a residence permit to the foreign 

minor.20 Such a permit must also be granted to any foreign unaccompanied minor who is 

fourteen years of age or younger based on family-reunion grounds, to those minors subject to the 

custody of an Italian citizen with whom they live, or to minors older than fourteen years of age 

and in the custody of and living with foreigners who are legal residents of Italy.21 In exceptional 

cases when the expulsion of a foreign minor is ordered by the juvenile court, such a measure may 

be adopted only if it does not cause a risk of serious harm to the minor.22

The local juvenile court will order the assisted and voluntary repatriation of a foreign 

unaccompanied minor when the reunion of the child with his or her family in the country of 

origin or in a third country is in the best interests of the child.23

 15 Id. art. 2(1).

16 Id. arts. 3(1)(a) & 3(1)(b).

17 Id. art. 5(1).

18 Legislative Decree No. 286 of 1998, art. 33.

19 Legge 30 luglio 2002, n. 189 Modifica alla normativa in materia di immigrazione e di asilo [Law No. 189 of July 

30, 2002, Amending the Law on Immigration and Asylum] art. 25, amending Legislative Decree No. 286 of July 25, 

1998, art. 32(1-bis), G.U. No. 199, Aug. 26, 2002, http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2002-

07-30;189!vig, archived at https://perma.cc/PDA2-7FE9.

20 Id. art. 10(1)(a).

21 Id. art. 10(1)(b).

22 Id. arts. 3(1)(a) & 3(1)(b).

23 Id. art. 8(1).
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III. Acquisition of Italian Citizenship by Residence

Provided that they fulfill the established criteria, persons who have been brought to Italy as 

minors are also eligible for Italian citizenship, by decree of the President of the Republic at the 

proposal of the Ministry of Internal Affairs, after hearing the Council of State, when such minors 

are found in either of these two categories: (1) they are stateless and have resided in the Italian 

territory for at least five years; or (2) they have resided legally in the Italian territory for at least 

ten years.24

 24 Law No. 91 of 1992, art. 9(1)(e) & (f).
The Law Library of Congress 49

Japan

Sayuri Umeda

Foreign Law Specialist

SUMMARY Children of illegal foreign residents may stay in Japan legally when they obtain special 

permission to stay from the government. Even when staying in Japan illegally, they may 

attend Japanese public elementary and secondary schools for free. There is no special path 

to obtain nationality for them. To be naturalized, they must first stay in Japan legally. 

I. Introduction

Japan’s population is approximately 126.8 million. 1 As of January 1, 2017, the estimated 

number of overstayed foreigners in Japan was 65,270. 2

 In addition, there are an unknown 

number of foreigners in the country who entered without immigration procedures.

3 Together 

both groups of foreigners are collectively referred to as “illegal foreign residents” or “illegally 

staying persons” (不法滞在者). 

When a person’s illegal status is discovered by an immigration office, deportation procedures are 

initiated.

4

 An illegal foreign resident may be able to stay in Japan legally only if he or she 

obtains special permission from the Minister of Justice. 5 Article 50, paragraph 1 of the 

Immigration Control and Refugee Recognition Act (Immigration Act) states as follows:

The Minister of Justice may . . . grant the suspect special permission to stay in Japan if 

the suspect falls under any of the following items:

(i) He or she has obtained permission for permanent residence.

(ii) He or she has had in the past a registered domicile in Japan as a Japanese 

national.

(iii)He or she resides in Japan under the control of another as a result of 

trafficking in persons.

 1

人口推計(平成 29 年(2017 年)3 月確定値,平成 29 年 8 月概算値) [Estimated Population (March 2017 

Final Number, August 2018 Approximate Number)], STATISTICS JAPAN (Aug. 21, 2017), http://www.stat.go.jp/ 

data/jinsui/new.htm, archived at https://perma.cc/XBA3-WSEB. 

2 本邦における不法残留者数について(平成 29 年 1 月 1 日現在) [Regarding Number of Overstaying People in 

Japan (as of January 1, 2017)], MINISTRY OF JUSTICE (Mar. 17, 2017), http://www.moj.go.jp/nyuukokukanri/ 

kouhou/nyuukokukanri04_00066.html, archived at https://perma.cc/HQD9-JXBP.

3 不法入国·不法滞在に係る諸問題 [Various Issues Relating to Illegal Entry and Overstay], 焦点 [Shoten] No. 

269, ch. 2, § 8 (2004), https://www.npa.go.jp/archive/keibi/syouten/syouten269/sec02/sec02_08.htm, archived at

https://perma.cc/8WEG-5SQA. 

4 Immigration Control and Refugee Recognition Law (Immigration Control Law), Order No. 319 of 1951, last 

amended by Law No. 79 of 2009, arts. 24, 39, & 45, http://www.japaneselawtranslation.go.jp/law/detail_main? 

re=02&ia=03&vm=02&id=2647, archived at https://perma.cc/N9YW-C2WF. 

5 Id. art. 50.
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(iv) The Minister of Justice finds grounds for granting special permission to stay, 

other than the previous items.

This decision is made individually with respect to each case based on comprehensive 

consideration of various factors, including the reason for stay, family conditions in Japan, the 

person’s conduct, the person’s current situation both at home and abroad, the need for 

humanitarian considerations, and the impact on other illegal residents. 6 To enhance the 

transparency and predictability of special permission to stay, the Immigration Bureau released 

Guidelines on Special Permission to Stay in Japan,

7 which list the positive and negative factors 

taken into account, in addition to items (i) to (iii) above, which are positive elements.8 

II. Children of Illegal Foreign Residents 

Non-Japanese children are not subject to the mandatory school education requirement in Japan.9 

However, the government has established a policy, in the spirit of the 1966 International 

Covenant on Economic, Social and Cultural Rights10 and the 1990 Convention on the Rights of 

the Child11, that if parents or guardians of foreign children wish to enroll them in Japanese 

schools, public primary and secondary schools must accept them. Such foreign students can 

enjoy free tuition and textbooks during mandatory education at public schools in Japan, the same 

as Japanese children.

12 This policy applies to children irrespective of their legal status of stay.13

Occasionally the threatened or actual deportation of the children of illegal foreign residents who 

have been raised and attended school in Japan receives public attention. In 2009, a Filipino girl’s 

parents were deported, but the girl, who was thirteen years old, was permitted to stay in Japan for 

one year by special permission of the Minister of Justice.14 She could not speak Tagalog,

15 and

 6 IMMIGRATION BUREAU, MOJ, 2011 IMMIGRATION CONTROL 100 (2011), http://www.moj.go.jp/content/00008 

1972.pdf, archived at https://perma.cc/G76Z-H42U. 

7 IMMIGRATION BUREAU, MOJ, 2016 IMMIGRATION CONTROL 88 (2016), http://www.moj.go.jp/content/00121 

1228.pdf, archived at https://perma.cc/N3QB-BNG5. 

8 Immigration Bureau, Ministry of Justice, Guidelines on Special Permission to Stay in Japan (Oct. 2006, revised 

July 2009), http://www.moj.go.jp/content/000048156.pdf, archived at https://perma.cc/98RR-9RSK. 

9 Basic Education Law, Act No. 120 of 2006, art. 4. This provision states that Japanese nationals are obligated to 

have children under their custody to receive ordinary education.

10 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 

I.L.M. 360 (1967), 993 U.N.T.S. 3.

11 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

12 外国人の子どもの公立義務教育諸学校への受入について [Regarding Acceptance of Foreign Children to 

Public Mandatory Education Schools], MINISTRY OF EDUCATION, CULTURE, SPORTS, SCIENCE AND TECHNOLOGIES,

http://www.mext.go.jp/b_menu/shingi/chousa/shotou/042/houkoku/08070301/009/005.htm (last visited Sept. 18, 

2017), archived at https://perma.cc/ZZT2-X2SA. 

13 JAPAN FEDERATION OF BAR ASSOCIATIONS, 非正規滞在外国人に対する行政サービス [ADMINISTRATIVE 

SERVICES FOR ILLEGAL FOREIGN RESIDENTS] 3 (Feb. 2016), https://www.nichibenren.or.jp/library/ja/publication/ 

booklet/data/gyosei_serv_pam_ja.pdf, archived at https://perma.cc/NY4J-WLLV. 

14 Calderon Couple Exit Japan, JAPAN TIMES (Apr. 14, 2009), https://www.japantimes.co.jp/news/2009/04/14/ 

national/calderon-couple-exit-japan/, archived at https://perma.cc/A4NY-FWDP. 
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she had an aunt to stay with in Japan.16 When she entered high school, her status of stay was 

changed to “student.” 17 Her living expenses were funded by contributions from the 

general public.18

In the case of a boy of a Thai mother who stayed in Japan illegally, special permission to stay 

was not granted. The child was an out-of-wedlock child of Thai parents. He was born and raised 

in Japan, but did not go to elementary school. Both his Thai and Japanese language skills were 

poor. However, he received special education support from a nongovernmental organization and 

enrolled in middle school in Japan in 2013, then subsequently enrolled in high school. When he 

appealed the Immigration Office’s decision that refused special permission to stay, the district 

court suggested that if his mother went back to Thailand voluntarily and he could find a guardian 

in Japan, the decision could be reconsidered. Though the mother returned to Thailand, it appears 

that there was no legal guardian for the boy at the time of the high court decision confirming the 

denial of special permission in December 2016.

19 According to a news article, the boy planned 

to stay with one of his supporters in Japan and file a special permission application again.20 

III. Path to Citizenship

The Japanese Nationality Law is based on lineage. A child whose father or mother is a Japanese 

national at the time of his or her birth acquires Japanese nationality.21 Therefore, birth within 

Japanese territory does not enable a person to acquire Japanese nationality. A person who is not 

a Japanese national (foreigner) may acquire Japanese nationality by naturalization.22 In general, 

the following conditions are required for naturalization:

 15 カルデロン・ノリコさん一家の在留問題に関する会長声明 [Declaration of Chairman Regarding Noriko 

Calderon Family’s Stay], TOKYO BAR ASSOCIATION (Mar. 17, 2009), https://www.toben.or.jp/message/seimei/post143.html, archived at https://perma.cc/4KSQ-UGN9. 

16 Girl Chooses Japan over Parents, BBC (Apr. 14, 2009), http://news.bbc.co.uk/2/hi/asia-pacific/7998048.stm, 

archived at https://perma.cc/Q82G-NTGQ. 

17 のりこ基金会計ご報告 [Report on Accounting of Noriko Foundation], カルデロン・アラン・クルズ一家に

在留特別許可を![SPECIAL PERMISSION FOR CALDERON ARLAN CRUZ FAMILY!] (Aug. 4, 2011), 

http://blog.goo.ne.jp/izumibashilaw/e/b5b009d2f7c45e2c957a4e669e8ecfcd, archived at https://perma.cc/G78JYU53. 

18 Id.;のりこ基金会計報告(2017 年上半期)[Report on Accounting of Noriko Foundation (First Half of 2017)],

SPECIAL PERMISSION FOR CALDERON ARLAN CRUZ FAMILY! (Aug. 1, 2017), http://blog.goo.ne.jp/izumibashi 

law/e/38b3f745e2dffb9b3010862b25869843, archived at https://perma.cc/WZX4-ZBAE. 

19日本で生まれ育ったタイ人高校生の未来は、強制退去なのか。司法への問いかけは続く, HUFFINGTON 

POST (Dec. 19, 2017), http://www.huffingtonpost.jp/2016/12/16/utinan-to-supreme-court_n_13670708.html, 

archived at https://perma.cc/Y69L-UHLM. 

20上告を取り下げ 生徒の敗訴確定 / 山梨, タイ人在留訴訟 [Withdrew an Appeal, Student’s Loss Confirmed / 

Yamanashi, Thai’s Stay Case], MAINICHI (Jan. 19, 2017), https://mainichi.jp/articles/20170119/ddl/k19/040/ 

023000c.

21 Nationality Act, Act No. 147 of 1950, amended by Act No. 88 of 2008, art. 2, http://www.japaneselaw 

translation.go.jp/law/detail_main?re=02&ia=03&vm=02&id=1857, archived at https://perma.cc/XS45-MLCF. 

22 Id. art. 4.
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A foreigner must

1. have been domiciled in Japan for five years or more consecutively;

2. be twenty years old or older and of full capacity to act according to the law of his 

or her home country; 

3. be of upright conduct; 

4. be able to secure a livelihood by his or her own property or ability, or those of his 

or her spouse or other relatives with whom he or she lives on common living 

expenses;

5. lose other nationalities, if he or she has any, by the acquisition of Japanese 

nationality; and

6. have never plotted, advocated, or been involved with a political party or other 

organization that has plotted or advocated the overthrow of the Constitution of 

Japan or the Japanese government.23

A foreigner may be exempted from one or several items if other conditions are met. Especially 

in cases where a foreigner has a Japanese spouse or other family relations in Japan, the 

requirements for naturalization are relaxed. 

Regarding the requirement of five years’ domicile in Japan, a person is deemed to be domiciled 

in Japan only when he or she lives in Japan legally.24 Therefore, the children of illegal foreign 

residents cannot become naturalized until they have obtained legal resident status, such as special 

permission to stay in Japan, and the required time has passed.

 23 Id. art. 5.

24木棚照一 [SHOICHI KIDANA], 国籍法 [NATIONALITY LAW] 260 (2003), bibliographic information at

https://lccn.loc.gov/2004389772.
The Law Library of Congress 53 

Mexico

Gustavo Guerra 

Senior Foreign Law Specialist

SUMMARY Foreign children and adolescents under eighteen years of age who are found in Mexico 

without the company of a family member or a legal guardian may be granted a temporary 

immigration status while authorities determine the most appropriate course of action 

applicable to them based on the specifics of their respective cases. Alternatives include 

granting them refugee status, returning them to their countries of origin, if appropriate, or 

regularizing their status, as explained below. Migrants in general may have access to 

education and health services pursuant to applicable requirements, regardless of their 

immigration status. Mexico’s Constitution provides that those born in the Mexican

territory are Mexicans by birth, regardless of the nationality of their parents. 

I. Treatment of Certain Minors under the Migration Law

Although Mexico’s Law on Migration does not appear to provide for a status with eligibility 

requirements similar to those provided by the US DACA program, the Law does provide for a 

status applicable to unaccompanied children and adolescents. Specifically, unaccompanied 

children and adolescents may be granted a temporary immigration status (Visitor on 

Humanitarian Grounds) while immigration authorities determine the most appropriate course of 

action applicable to them based on the specifics of their respective cases (including granting 

them refugee status, returning them to their countries of origin, if appropriate, or granting them 

regularization of their status provided that applicable requirements are met, as explained below).1

Foreign children and adolescents under eighteen years of age who are in Mexico without the 

company of a family member or a legal guardian are eligible for this status.2

Procedures applicable to the treatment and determination of the status of these children 

may include 

• placing the child in an institution qualified to provide adequate care for children;

• interviewing the child in order to obtain pertinent information, such as his/her identity,

country of origin, migration status, family whereabouts, and particular needs as to medical

and psychological care; or

1 Ley de Migración [Law on Migration] arts. 52 (V-b), 74, 112, DIARIO OFICIAL DE LA FEDERACIÓN [D.O.], May 25, 

2011, available as amended through May 2017 on the website of Mexico’s House of Representatives, at

http://www.diputados.gob.mx/LeyesBiblio/pdf/LMigra_190517.pdf, archived at https://perma.cc/8NJJ-EN8N. 

Immigration and nationality are regulated in Mexico by a number of statutes and a wide variety of regulations whose 

applicability depends upon the specifics of a given case. This report provides a brief summary of key provisions of 

Mexican law, but other rules may be pertinent depending on the specifics of the case in question.

2 Id. art. 3 (XVIII).
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• notifying the consulate of the child’s country of origin of the pertinent proceedings in order 

to request assistance in locating the parents of the child and collaborate in returning the child 

to his/her country, if applicable.

3 

II. Regularization

As stated above, unaccompanied children and adolescents may be eligible to benefit from the 

general rules governing regularization of foreigners if it is determined that they qualify for this 

option.

4 Such rules provide that foreigners whose migration status is irregular may apply to 

regularize their status provided that applicable requirements are met.5 More specifically, these 

foreigners residing in Mexico are eligible to apply for regularization of their status if they

• prove that they are married to a Mexican national or legal resident in Mexico;

• prove that they have Mexican children or parents (or that these relatives are legal residents in 

Mexico), or are guardians of Mexican nationals or legal residents in Mexico;

• are identified by Mexican authorities as victims of or witnesses to a serious crime committed 

in Mexico;

• have a level of vulnerability that makes it difficult or impossible for them to be deported; or

• are children and adolescents subject to international abduction and restitution procedures.6

In addition, foreigners who have overstayed their immigration permits, have engaged in activities 

different from those authorized, or simply lack the necessary documentation to prove regular 

status may apply to regularize their status provided that applicable requirements are met.7 

Generally, foreigners who wish to apply for regularization of their status must

• submit a statement to Mexico’s National Institute of Migration requesting regularization of 

status and explaining the irregularities incurred by the applicant;

• present an official identification document;

• provide documentation of a relationship with a Mexican national or legal resident in Mexico

if the application is based on such a relationship;

• in the case of foreigners who overstay their immigration permits, present their expired 

documentation and apply for status within sixty days after such expiration occurred;

• pay a fine; and 

 3 Id. art. 112.

4 Id. art. 112 (V).

5 Id. arts. 3 (XXVIII), 132, 133. 

6 Id. art. 133.

7 Id. arts. 132, 134.
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• fulfill the requirements applicable to the particular status that the foreigner wishes to obtain8

(a number of which include permission to work in Mexico temporarily).

9

III. Benefits for Migrants in General

The Law on Migration provides a number of rights applicable to migrants in general, including 

the right to receive any urgent medical service necessary to preserve their lives at no cost and 

without restriction, regardless of their immigration status.10 Also, the Law allows migrants to 

have access to education and health services provided by the public and private sectors pursuant 

to applicable requirements, regardless of their immigration status.11 

IV. Refugees

Applicants for refugee status may obtain a temporary visitor status in Mexico while their 

applications are processed.

12 If refugee status is granted, the applicant obtains permanent 

residency, which includes a permit to work in Mexico.

13 

V. Nationality

Mexico’s Nationality Law provides that a foreigner who wants to apply for naturalization must 

demonstrate that he/she has resided legally in Mexico for at least five years immediately 

preceding the filing of the application.14 This period of residency in Mexico may be reduced to 

two years if the applicant

• is a direct descendant of a Mexican national by birth;

• has children who are Mexican nationals by birth;

• is a native of a Latin American country or the Iberian Peninsula;

• has been married to a Mexican national and has lived in Mexico with his/her Mexican spouse 

for two years; or

 8 Id. arts. 134, 135.

9 Id. art. 52.

10 Id. art. 8.

11 Id.

12 Id. art. 52(V-c).

13 Id. arts. 52(V-c), 54.

14 Ley de Nacionalidad [Law on Nationality], as amended through 2012, art. 20, D.O., May 25, 2011, 

http://www.diputados.gob.mx/LeyesBiblio/pdf/53.pdf, archived at https://perma.cc/839P-V3BB. See also

Reglamento de la Ley de Nacionalidad [Regulation of the Law of Nationality], as amended through 2013, art. 14, 

D.O., June 17, 2009, http://www.diputados.gob.mx/LeyesBiblio/regley/Reg_LNac.pdf, archived at

https://perma.cc/L9H7-GGJD.
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• has provided a service that is beneficial to Mexico in the fields of culture, society, science, 

art, sports, or business, subject to the discretion of Mexico’s Department of Foreign 

Affairs.15

The five-year period of residency in Mexico may be reduced to one year if the applicant for 

naturalization is adopted by a Mexican national.16 In addition to the period of residency, 

applicants for naturalization are required to speak Spanish, demonstrate knowledge of the history 

of Mexico and integration into its culture, take an oath of allegiance to Mexico, renounce any 

other nationality, and submit a naturalization application to Mexico’s Department of 

Foreign Affairs.17 An application for nationality may be denied if the applicant is in prison for 

committing an intentional crime in Mexico or abroad.18

VI. Status of Children Born in Mexico

Mexico’s Constitution provides that those born in Mexican territory are Mexicans by birth, 

regardless of the nationality of the parents.19 According to Mexico’s National Commission for 

Human Rights, this right is also applicable to children born in Mexico to foreign parents 

regardless of the parents’ legal status.20

 15 Ley de Nacionalidad art. 20.

16 Id.

17 Id. art. 19.

18 Id. art. 25.

19 CONSTITUCIÓN POLÍTICA DE LOS ESTADOS UNIDOS MEXICANOS [POLITICAL CONSTITUTION OF THE MEXICAN 

UNITED STATES], as amended through 2017, art. 30(A)–(I), D.O., Feb. 5, 1917, http://www.diputados.gob.mx/ 

LeyesBiblio/pdf/1_240217.pdf, archived at https://perma.cc/BH76-5QAZ.

20 Derechos de las Personas Migrantes: Derecho a la Nacionalidad, COMISIÓN NACIONAL DE LOS DERECHOS 

HUMANOS, http://www.cndh.org.mx/Derecho_Migrantes (last visited Sept. 28, 2017), archived at

https://perma.cc/AZS4-ESKF. 
The Law Library of Congress 57

Russia

Nerses Isajanyan

Foreign Law Consultant

SUMMARY Russia does not have laws that specifically deal with issues of undocumented minors. 

Illegal migrants under the age of sixteen are generally not subject to forced removal. 

However, they cannot acquire Russian citizenship, even if born in Russia. Amnesty 

programs in 2017 were targeted at adult migrant workers specifically from Moldova 

and Tajikistan. 

I. Background Information

The number of illegal immigrants in Russia is estimated to be between eight and ten million 

people, which is about 7% of Russia’s total population. 1 The majority of them come from 

Central Asian and other former Soviet countries whose nationals enjoy a visa-free regime with 

Russia.2 Officials note that the Ukrainian crisis alone caused the inflow of around 1.1 million 

people to Russia in 2014–2015.3 Because of budgetary constraints, in 2016 Russia was able to 

deport only 1,650 foreigners out of 4,428 detained for removal.4

II. Undocumented Children

Russia has not enacted legislation specifically targeting undocumented children. Because 

children under sixteen are not subject to administrative responsibility they cannot be forcibly 

deported and are allowed to stay in Russia with relatives; if there are no such relatives, they are 

placed in social institutions.5 The government does not assign funds for the removal of children 

under sixteen and such removal can be arranged only at the expense of the child’s family.6

Undocumented children have limited access to education, health care, and social assistance.7

Only emergency medical treatment must be provided to foreigners free of charge and without 

 1 Vladimir Vaschenko, Russia Recounted Migrants, GAZETA.RU (May 17, 2017), https://www.gazeta.ru/ 

social/2017/05/17/10677761.shtml (in Russian), archived at https://perma.cc/3SAL-HDEU.

2 Vitaliy Petrov, The Difficulties of Expulsion: Vladimir Kolokoltsev Spoke about the Fight against Illegal 

Immigrants, ROSSIISKAIA GAZETA (Dec. 14, 2016), https://rg.ru/2016/12/14/glava-mvd-soobshchil-o-nehvatkedeneg-na-vydvorenie-migrantov-iz-rossii.html (in Russian), archived at https://perma.cc/PJE7-9BZP.

3 Id.

4 Id.

5 COMMISSIONER FOR CHILDREN’S RIGHTS IN ST. PETERSBURG, ANNUAL REPORT FOR 2016, § 2.3, available at

http://www.spbdeti.org/files/razdel_2.3..pdf (in Russian), archived at https://perma.cc/A3MA-FDUD.

6 Id.

7 Nigora Bukhari-zade, Does Russia Need Children of Migrants?, FERGANA (Apr. 5, 2012), 

http://www.fergananews.com/articles/7330 (in Russian), archived at https://perma.cc/9QK3-KREY.
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delay.

8 Human rights lawyers claim that Russia is obliged by virtue of international instruments 

to ensure the right to education and medical treatment for all children, irrespective of their status. 

However, by law only children with legal status can be enrolled in schools. 9 Educational 

institutions generally admit children who are in Russia on temporary visas. Such visas usually 

expire within ninety days, and schools tend to allow children to attend classes at least until the 

end of the school year.10 Reportedly, immigration authorities periodically inspect educational 

institutions to detect illegal immigrants, and certain schools have been fined for keeping

undocumented children.11

III. Citizenship

Russia follows the jus sanguinis principle. Therefore, the mere fact of being born in Russia does 

not grant citizenship to a child. There are exceptions, however, for children born in Russia to 

unknown parents12 or to parents who cannot pass their citizenship to the child.13

Acquisition of Russian citizenship is possible for adult applicants who meet the requirements for 

naturalization.

14 Children (i.e., sons and daughters below the age of eighteen) of naturalized 

citizens generally acquire citizenship together with their parents. 15 Having a lawful status

(normally a permanent resident permit) in Russia is a precondition for applying for citizenship.

16

Therefore, it is not possible for illegal immigrants or their children to apply for citizenship unless 

they legalize their status. Acquisition of citizenship is possible for children adopted by Russian 

citizens, 17 those who have Russian foster parents, and those placed in social institutions 

in Russia.

18

 8 Government Resolution No. 186 on Provision of Medical Assistance to Foreign Nationals on the Territory of the 

Russian Federation, March 6, 2013, SOBRANIE ZAKONODATELSTVA ROSSIISKOI FEDERATSII I [OFFICIAL GAZETTE OF 

THE RUSSIAN FEDERATION] No. 10/2013, Item 1035, http://pravo.gov.ru/proxy/ips/?docbody=&nd=102163637& 

rdk=&backlink=1 (in Russian), archived at https://perma.cc/V4JM-UUNU.

9 COMMISSIONER FOR CHILDREN’S RIGHTS IN ST. PETERSBURG, supra note 5.

10 Id.

11 Nigora Bukhari-zade, supra note 7.

12 Federalnyi Zakon o Grazhdanstve [Federal Law on Citizenship], No. 62-FZ of May 31, 2002, art. 12, SOBRANIE 

ZAKONODATELSTVA ROSSIISKOI FEDERATSII I [SZRF] [OFFICIAL GAZETTE OF THE RUSSIAN FEDERATION] No. 

22/2002, Item 2031, http://pravo.gov.ru/proxy/ips/?docbody=&nd=102076357, archived at https://perma.cc/3B2UTWW8, English translation available at http://www.refworld.org/pdfid/50768e422.pdf, archived at

https://perma.cc/23L7-EP6G.

13 Id.

14 Id. arts. 13, 14.

15 Id. arts. 24, 25. 

16 Id. art. 13.

17 Id. art. 26.

18 Id. art. 27.
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IV. Amnesty Programs

In 2016, officials announced the possibility of an amnesty program that could extend to three 

million illegal immigrants.

19 During 2017 Russia implemented two amnesty programs for illegal 

immigrants from two specific countries: Moldova and Tajikistan. These programs came into 

existence after negotiations at the level of heads of state. The programs were announced in the 

mass media but their legal basis is not clear; regulations reportedly have been circulated 

internally within the Russian Ministry of Internal Affairs and have not been made public.20 

The Moldavan program was announced in January 2017 following a meeting between President 

Igor Dodon of Moldova and President Vladimir Putin of the Russian Federation. Moldovan 

citizens with illegal status in Russia had twenty days to appear before the immigration 

authorities, register, and then obtain a work permit within the next thirty days, or to leave the 

country within ninety days. The program allowed Moldovan citizens to legalize their status in 

Russia and obtain legal employment, but did not provide a path to Russian citizenship. 

Subsequently this period was extended to May 12, 2017, as only 10,000 Moldovans of the 

expected 250,000 were able to take advantage of the program.21 About 17,500 “blacklisted” 

Moldovans who had left Russia and whose entry into the country had been barred because of 

prior overstays were also eligible to participate in the program. However, criminal offenders, 

those who had been deported from Russia or whose deportation hearings were pending, and 

those who re-entered the territory of Russia despite the travel ban were excluded from 

the program.22 

A similar program was implemented from March 25 to April 24 of 2017 for citizens of Tajikistan 

following a meeting between Russian and Tajik presidents in February of 2017. It covered 

70,000 Tajik citizens illegally residing in Russia.

23 About 106,000 Tajik nationals were allowed 

to come back to Russia while 5,000 were permanently barred from entering Russia because of 

diseases such as AIDS, tuberculosis, hepatitis, etc.24 

19 Vladimir Vaschenko, Illegals in the Law, GAZETA.RU (Oct. 17, 2016), https://www.gazeta.ru/social/2016/ 

10/17/10255073.shtml (in Russian), archived at https://perma.cc/U6C2-V2WT. 

20 Amnesty of Migrants from Tajikistan in Russia: Who Is Concerned and What to Do, RIA (Apr. 17, 2017), 

https://ria.ru/sn_migrants/20170417/1492405448.html (in Russian), archived at https://perma.cc/6TSP-C5AB . 

21 Dodon: Russia Has Extended the Amnesty Period for Moldovan Citizens, SPUTNIK.MD (Mar. 24, 2017), 

https://ru.sputnik.md/politics/20170324/11815164/dodon-rossiya-prodlila-period-amnistii-dlya-grazhdanmoldovy.html (in Russian), archived at https://perma.cc/HYT3-GLAW. 

22 Amnesty for Moldovan Migrant Workers in Russia: Not All Will Be Able to Legalize, REGNUM (Mar. 9, 2017), 

https://regnum.ru/news/2247149.html (in Russian), archived at https://perma.cc/EU9T-47NQ. 

23 Liubov Kuliabko & Ekaterina Gabel, Amnesty Announced to Migrant Offenders from Tajikistan, MK.RU (Mar. 24, 

2017), http://www.mk.ru/social/2017/03/24/migrantamnarushitelyam-iz-tadzhikistana-obyavili-amnistiyu.html (in 

Russian), archived at https://perma.cc/4YLV-E27G. 

24 106,000 Tajik Migrants Will Be Able to Return to Russia Again, REGNUM (June 13, 2017), 

https://regnum.ru/news/polit/2287397.html (in Russian), archived at https://perma.cc/NZN2-UWTS. 
The Law Library of Congress 60

Saudi Arabia 

George Sadek

Senior Legal Research Analyst 

SUMMARY Foreigners and their children who violate Saudi Arabia’s Residency Law by staying in the 

country illegally do not have a legal path to obtain a permanent residence permit or 

citizenship. Children of foreigners who reside illegally in the Kingdom as well as their 

parents must be detained and deported from Saudi Arabia for violating the Residency Law.

Saudi Arabia is neither a party to the 1951 Convention Relating to the Status of Refugees, 

its 1967 Protocol, nor other international conventions protecting stateless persons.

I. Permanent Residency

Foreigners and their children who violate the Residency Law by staying in Saudi Arabia illegally 

do not have a legal path to obtain permanent residence permits. The Residency Law1 in Saudi 

Arabia provides only a temporary residency permit for the purpose of working in Saudi Arabia. 

Such a residency permit is renewable annually,

2 and includes the permit-holder’s spouse and 

minor children (under eighteen years of age).

3 Children who are eighteen and older are required 

to obtain an independent residency permit.4

II. Citizenship Requirements 

The children of foreigners residing in the Kingdom of Saudi Arabia illegally have no right to 

apply for Saudi nationality. These children do not meet the requirements created by the Saudi 

Citizenship Law of 1954 and its 1985 amendments.5

 Article 9 of the Citizenship Law requires 

that a foreigner may only apply for Saudi citizenship if he/she 

• has reached the age of majority at the time of submitting the application;

• has been a legal resident of the Kingdom for ten consecutive years; 

• is of sound mind; 

• has a record of good conduct (i.e., was never convicted of a criminal offense or imprisoned 

for more than six months for committing a crime against public morals);

 1 Residency Law, Law No. 17-2/25/1337, as amended, issued 4 May 1952, http://www.gdp.gov.sa/sites/pgd/arSA/TravelDocuments/IqamSystem/Pages/default.aspx (in Arabic), archived at https://perma.cc/QJ8G-QBJJ.

2 Id. art. 37.

3 Id. art. 41.

4 Id. art. 42.

5 Law of Citizenship of 1954, issued 23 September 1954, http://www.mofa.gov.sa/aboutKingDom/Saudi 

Government/RegimesInKingdom/CivilStatusSystem/Documents/87757_2جنسیة.pdf (in Arabic), archived at 

https://perma.cc/6J2X-JRRS.
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• works legally in a profession needed by the country; and

• has a good command of the Arabic language, including speaking, reading, and writing. 

Additionally, the applicant must submit with his/her application a Saudi residency permit and 

his/her passport.6

III. Deportation of Violators 

The children of foreigners who reside in the Kingdom illegally as well as their parents must be 

detained and deported from Saudi Arabia for violating the Residency Law. The Law authorizes 

the deportation of a foreigner whose visa has expired and whose residency permit has not been 

granted for any reason. It states that each foreigner who holds an expired visa issued by consular 

or diplomatic authorities of His Majesty’s Government abroad and who does not meet the 

required conditions for being granted a residency permit must leave the country voluntarily 

within a period not to exceed one week. If the individual fails or refuses to leave, the Public 

Security Department must deport the individual at his or her own expense.7 Likewise, the Law 

states that a foreigner who loses his/her work permit may be detained and must leave the 

Kingdom within one week.8 Finally, any foreigner who enters Saudi Arabia illegally must be 

imprisoned until he/she is deported from the country.9

IV. Legal Status of Refugees 

Saudi Arabia is neither a party to the 1951 Convention Relating to the Status of Refugees, its 

1967 Protocol, the 1954 Convention Relating to the Status of Stateless Persons, nor the 1961 

Convention on the Reduction of Statelessness. The Kingdom of Saudi Arabia does not have a 

domestic law governing asylum or refugees. 

 6 Id. art. 9.

7 Residency Law art. 27.

8 Id. art. 11, para. 2.

9 Id. art. 50.
The Law Library of Congress 62

South Africa 

Hanibal Goitom 

Foreign Law Specialist

SUMMARY Under South African law, it appears that children of illegal foreigners are not entitled to 

permanent residency or citizenship. South Africa has programs permitting qualifying 

illegal foreigners from Zimbabwe and Lesotho to temporarily adjust their status so that 

they can work, conduct business, or study in South Africa for the duration of the programs. 

However, these programs do not entitle the participants to adjust their status to permanent 

residency or citizenship. 

I. Introduction

South Africa’s immigration system is controlled by the Immigration Act 1 and its subsidiary 

legislation, the Immigration Regulations.2

 An alien who is not a permanent resident in South 

Africa may be admitted to the country only if he or she is issued a valid visa.

3

 South Africa has 

various classes of visa.

4

 

The acquisition of South African citizenship is governed by the 1995 Citizenship Act5 and its 

subsidiary legislation, the Citizenship Regulations. 6 The Department of Home Affairs 

administers the Citizenship Act and the Minister of the Department has wide discretionary 

powers on an array of issues, including with regard to the granting of citizenship to a foreigner; 

however, all his decisions are subject to judicial oversight.

7

 

 1 Immigration Act No. 13 of 2002, 15 BUTTERWORTHS STATUTES OF THE REPUBLIC OF SOUTH AFRICA [BSRSA]

(rev. through 2016), available on the University of Pretoria website, at http://www.lawsofsouthafrica.up.ac.za/ 

index.php/browse/citizens-and-foreigners/immigration-act-13-of-2002/act/13-of-2002-immigration-act-9-aug-2015-

to-date-pdf/download, archived at https://perma.cc/65GU-AGKH.

2 Immigration Regulations 2014, No. R. 413 GOVERNMENT GAZETTE [GG], No. 37679 (May 26, 2014), available at 

http://www.lawsofsouthafrica.up.ac.za/index.php/browse/citizens-and-foreigners/immigration-act-13-of2002/regulations-and-notices/13-of-2002-immigration-act-regs-gnr-413-26-may-2014-to-date-pdf/download, 

archived at https://perma.cc/8DS3-AE5G. 

3 Immigration Act § 9. 

4 Id. §§ 11–24; Immigration Regulations §§ 11–22. 

5 South African Citizenship Act No. 88 of 1995, 3 BSRSA (rev. through 2011), available at http://www.lawsof 

southafrica.up.ac.za/index.php/browse/citizens-and-foreigners/south-african-citizenship-act-88-of-1995/act/88-of1995-south-african-citizenship-act-1-jan-2013-to-date-pdf/download, archived at https://perma.cc/D59S-B37L.

6 Regulations on the South African Citizenship Act, 1995 (Citizenship Regulations), No. 1122, GN, No. 36054 (Dec. 

28, 2012) available at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/Citizens and Foreigners/South 

African Citizenship Act 88 of 1995/Regulations and Notices/88-of-1995-south-african-citizenship-act-regs-gnr1122-1-jan-2013-to-date-pdf/download, archived at https://perma.cc/Y2R7-PQFP. 

7 Citizenship Act §§ 1, 22, & 23; F. Venter, Citizenship and Nationality, in 2(2) THE LAW OF SOUTH AFRICA 127, 

133 (W.A. Joubert et al. eds., 2003). 
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II. Illegal Foreigners

An “illegal foreigner” is a foreigner who is in South Africa in violation of the Immigration Act, 

meaning a person “without documentation to prove legal status.”8 This does not include the 

holders of an expired asylum transit visa. While the Immigration Act states that a holder of an 

asylum transit visa becomes an illegal foreigner if his/her visa expires before he/she can report to 

a Refugee Reception Office, a 2012 Supreme Court of Appeal decision found that “the lapse of 

an asylum transit visa by itself does not render an asylum seeker an illegal immigrant.”9

 The 

Court has also held that “undocumented asylum seekers not in possession of asylum transit visas 

cannot be summarily considered ‘illegal foreigners’ ”10

III. Permanent Residency Requirements

Children of illegal foreigners are not entitled to permanent residency. Under South African law,

residency may be established through one of two possible means: direct residency or residency 

on other grounds. A child is eligible to acquire direct residency if he/she is under twenty-one 

years of age and the child of a citizen or a permanent resident.11 In this case the permit would 

expire upon the child reaching the age of twenty-one and failing to apply for confirmation.

12 A 

child may also acquire direct residency if he/she is the child of a citizen.13 In addition, a child 

may be able to establish residency if he/she is the relative of a citizen or permanent resident 

within the first degree of kinship.14 The source of entitlement to acquire permanent residency in 

all these circumstances is a relationship to a person whose presence in South Africa is legal.

IV. Citizenship Requirements

Acquisition of citizenship also requires a connection to a documented person.

15 A person born in 

or outside of South Africa is a citizen by birth if at least one of his parents is a South African 

 8 Immigration Act § 1; Corey Johnson & Sergio Carcitto, The State of the Asylum System in South Africa, in STATES,

THE LAW AND ACCESS TO REFUGEE PROTECTION 167, 172 (2014). 

9 Johnson & Carcitto, supra note 8, at 172. 

10 Id. at 173. 

11 Immigration Act § 26. 

12 Id. 

13 Id. 

14 Id. § 27. Persons considered within the first step of kinship are parents, children, and spouses. Permanent 

Residence in South Africa, SOUTH AFRICA EMBASSY IN WASHINGTON, D.C., http://www.southafricanewyork.net/homeaffairs/immigration.htm (last visited Sept. 28, 2017), archived at https://perma.cc/LAA8-AJZ5. 

15 Press Release, Department of Home Affairs, Media Statement on How Citizenship is Acquired and Children 

Registered in South Africa (Apr. 11, 2017), http://www.home-affairs.gov.za/index.php/statements-speeches/958-

media-statement-on-how-citizenship-is-acquired-and-children-registered-in-south-africa, archived at

https://perma.cc/L6G8-AAE3; Marissa Rogers & Uvi Chanderparsath, South Africa: Dispensation of Zimbabweans 

Project and the Introduction of the New Zimbabwe Special Permit (Oct. 2014), http://www.ey.com/Publication/ 

vwLUAssets/South_Africa_int roduces_new_Zimbabwean_Special_Dispensation/$FILE/October 22 South Africa -

Dispensation of Zimbabweans Project and the introduction of the new Zimbabwean Special Dispensation 

Permit.pdf, archived at https://perma.cc/ABB8-RC86. 
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citizen.16 Anyone born in South Africa to non-South African citizens is a citizen by birth if 

he/she does not already have or qualify for citizenship of a foreign country and his/her birth has 

been duly registered in South Africa in accordance with the applicable law. 17 In addition, 

anyone born in South Africa to parents who have been granted permanent residency permits 

qualifies for citizenship by birth if he/she has lived in the country from the time of birth to the 

time of attaining the age of majority, and his/her birth has been duly registered in accordance 

with the applicable law. 18 It appears that the birth of a child of an illegal foreigner cannot 

be registered.19

V. Special Dispensations

In 2009, South Africa introduced a special dispensation for citizens of Zimbabwe living in South 

Africa illegally. Known as the Dispensation of Zimbabwe Project (DZP), this program 

temporarily regularized the immigration status of Zimbabweans who met certain requirements.20

The program permitted Zimbabweans who had a valid Zimbabwean passport, proof of 

employment/business/accredited study, and no criminal record to apply for temporary status so 

that they could work, conduct their business, or study in South Africa.21 The program, which 

allowed for around 250,000 Zimbabwean nationals to temporarily adjust their status, expired in 

December 2014 and was subsequently renewed. 22 Once the current program expires in 

December 2017, it will be replaced by one that will run through 2021.23 Significantly, this 

program accords temporary legal status to qualifying applicants and does not “entitle the holder 

the right to apply for permanent residence irrespective of the period of stay in the Republic of 

South Africa.”24

In October 2015, South Africa introduced a similar program, Lesotho Special Permit (LSP), for 

citizens of Lesotho illegally living in South Africa.25 Like the Zimbabwe program, while special 

 16 Id. § 2. 

17 Id. 

18 Id. 

19 Press Release, Department of Home Affairs, supra note 15. 

20 New Zimbabwe Dispensation Permit Announced, INTERGATE IMMIGRATION, http://www.intergateimmigration.com/blog/new-zimbabwean-special-dispensation-permit-announced/ (last visited Sept. 18, 2017), 

archived at https://perma.cc/K9CF-JQUS. 

21 Id. 

22 Press Statement, Department of Home Affairs, Home Affairs Clarifies Status of Special Permits for Zimbabweans 

(May 20, 2014), http://www.home-affairs.gov.za/index.php/statements-speeches/463-home-affairs-clarifies-statusof-special-permits-for-zimbabweans, archived at https://perma.cc/CD2G-FBXJ. 

23 Statement by Minister Mkhize on the Closure of the Zimbabwean Special Permit (ZSP) and the Opening of the 

New Zimbabwean Permit (ZEP) (Sept. 8, 2017), http://www.dha.gov.za/index.php/statements-speeches/1034-

statement-by-minister-mkhize-on-the-closure-of-the-zimbabwean-special-permit-zsp-and-the-opening-of-the-newzimbabwean-exemption-permit-zep, archived at https://perma.cc/V2T6-D5C7. 

24 Id. 

25 Statement by Home Affairs Minister Malusi Gigaba at the Media Briefing on the Closing of the Zimbabwe 

Special Permit Programme and the Opening of the Lesotho Special Permit (Nov. 25, 2015), http://www.homeaffairs.gov.za/index.php/statements-speeches/704-statement-by-home-affairs-minister-malusi-gigaba-at-the-media-
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dispensation entitles the holder to work, do business, or study for the duration of the program, it 

does not entitle him/her to apply for and obtain permanent residency.26 The program will expire 

in December 2019.27

 

briefing-on-the-closing-of-the-zimbabwe-special-permit-programme-and-the-opening-of-the-lesotho-special-permit, 

archived at https://perma.cc/3KEC-E63N. 

26 Id. 

27 Press Release, Department of Home Affairs, Media Statement on Minister Gigaba’s Visit to the Lesotho Special 

Permit Centre (May 10, 2016), http://www.home-affairs.gov.za/index.php/statements-speeches/782-mediastatement-on-minister-gigaba-s-visit-to-the-lesotho-special-permit-centre, archived at https://perma.cc/8T84-DRR5. 
The Law Library of Congress 66

Sweden

Elin Hofverberg

Foreign Law Research Consultant

SUMMARY Sweden has no special path to permanent residency or citizenship for undocumented 

minors, and children born to undocumented parents do not receive Swedish citizenship at 

birth. Sweden has not granted general amnesty for persons who have been undocumented 

over a long period. The right to legal residence based on humanitarian grounds allows for 

the consideration of time spent in Sweden and is more generous towards children than 

adults. The right to residence is determined on an individual basis, where prior status as an 

undocumented person is not considered a hindrance. Undocumented persons in Sweden 

are typically persons who have had their asylum application denied. Many of the 

undocumented individuals in Sweden are minors. Asylum applications can be resubmitted 

after a four-year statute of limitation on the most recent decision has run. Undocumented 

minors have the same right to public education, health care, and dental care as children 

who are citizens. Undocumented adults also have a limited right to financial and health 

benefits, covering only acute/urgent circumstances.

I. Introduction/Background

Sweden is a member of the European Union (EU) and as such is bound by EU law. Specifically 

in relation to immigration law, Sweden is bound by the free movement of people (EU citizens), 

Schengen, and the Dublin Regulation.

1

During the Refugee Crisis of 2015, 162,900 asylum seekers (equal to approximately 1.7% of the 

population) sought refuge in Sweden.

2 This made Sweden the second-largest EU recipient of 

asylum applications per capita in 2015.3 Nearly half of these immigrants came during October

and November of 2015.4 In total 70,384 minors sought asylum in 2015.5 A little more than half 

 1 Schengen Area, EUROPEAN COMMISSION (Sept. 15, 2017), https://ec.europa.eu/home-affairs/what-wedo/policies/borders-and-visas/schengen_en, archived at https://perma.cc/82E3-477F; Common European Asylum 

System, EUROPEAN COMMISSION (Sept. 15, 2017), https://ec.europa.eu/home-affairs/what-we-do/policies/ 

asylum_en, archived at https://perma.cc/HN4S-JSR8. 

2 STATISTISKA CENTRALBYRÅN [STATISTICS SWEDEN], http://www.scb.se/sv_/Hitta-statistik/Artiklar/Syriervanligast-bland-asylsokande-under-2015/, archived at https://perma.cc/P3CB-5NBR. 

3 Sweden received 1,667 applications per 100,000 inhabitants compared to the EU average of 260 per 100,000 

inhabitants. Only Hungary received more applications per capita. Migrant Crisis: Migration to Europe Explained 

in Seven Charts, BBC (Mar. 4, 2016), http://www.bbc.com/news/world-europe-34131911, archived at

https://perma.cc/874G-HC5W. 

4 STATISTISKA CENTRALBYRÅN, supra note 2. More than 35,000 persons came in each of these months. 

5 Asylsökande till Sverige under 2000–2016, MIGRATIONSVERKET, https://www.migrationsverket.se/download/ 

18.585fa5be158ee6bf362fd2/1485556063045/Asyls%C3%B6kande+till+Sverige+2000-2016.pdf (last visited Sept. 

19, 2017), archived at https://perma.cc/K3NS-NQ3T.
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of the minors (35,400) were unaccompanied minors, mostly boys in their late teens 

from Afghanistan.6

As a response to the refugee crisis the Swedish parliament and government made several changes 

to the Swedish immigration law in 2015 and 2016, most notably changing and limiting policies 

on who receives permanent resident status, 7 as well as how humanitarian reasons are 

determined.8 In addition, in December of 2015 Sweden set up border controls, both external and 

internal.9 Internal border controls are still in effect in a number of Swedish ports and cities; the 

large identification control program on the border to Denmark has ceased.

10

Two incidents have been reported related to undocumented immigrants. On April 7, 2017, a 

terrorist attack was carried out in the Swedish capital Stockholm by a person who had been 

refused asylum and who had a legal obligation to leave Sweden voluntarily but instead had 

chosen to stay and live as an undocumented immigrant.11 In 2015 an asylum-seeker who had 

just found out that he had been denied asylum killed two people in an unprovoked attack at an 

IKEA store; the case was not considered a terrorist attack but deemed directly linked to his 

rejected asylum application.

12

 6 Id. 

7 LAG OM TILLFÄLLIGA BEGRÄNSNINGAR AV MÖJLIGHETEN ATT FÅ UPPEHÅLLSTILLSTÅND I SVERIGE [ACT ON 

TEMPORARY RESTRICTION ON THE POSSIBILITY OF OBTAINING RESIDENCE PERMITS IN SWEDEN] (SFS 2016:752), 

http://www.notisum.se/rnp/ sls/lag/20160752.htm, archived at https://perma.cc/W6CJ-58JF; see also Elin 

Hofverberg, Sweden: Government Moves to Adopt More Restrictive Rules for Asylum Seekers, Global Legal 

Monitor (Nov. 30, 2015), http://www.loc.gov/law/foreign-news/article/sweden-government-moves-to-adopt-morerestrictive-rules-for-asylum-seekers/, archived at https://perma.cc/GXF6-MK2H. 

8 LAG OM TILLFÄLLIGA BEGRÄNSNINGAR AV MÖJLIGHETEN ATT FÅ UPPEHÅLLSTILLSTÅND I SVERIGE (SFS 2016:752), 

supra note 7; see also Hofverberg, supra note 7. 

9 Regeringen Pressrelease, Regeringen beslutar att tillfälligt återinföra gränskontroll vid inre gräns (Nov. 12, 2015), 

http://www.regeringen.se/artiklar/2015/11/regeringen-beslutar-att-tillfalligt-aterinfora-granskontroll-vid-inre-grans/, 

archived at https://perma.cc/9PQS-6UUR. 

10 Frågor och svar om id-kontroller och gränskontroller, REGERINGEN (May 15, 2017), http://www.regeringen.se/ 

artiklar/2017/05/fragor-och-svar-om-id-kontroller-och-granskontroller/, archived at https://perma.cc/6SS4-J6AD. 

11 Stockholm Attack: Who Is Suspect Rakhmat Akilov?, BBC (Apr. 10, 2017), http://www.bbc.com/news/worldeurope-39552691, archived at https://perma.cc/345M-S737; Press Release, Stockholms Tingsrätt [Stockholm 

District Court] (Apr. 11, 2017), http://www.stockholmstingsratt.se/Om-tingsratten/Nyheter-ochpressmeddelanden/One-person-detained-suspected-for-a-terrorist-offence-for-the-incident-in-central-Stockholm-onFriday/, archived at https://perma.cc/NWL7-A7RN. See also Press Release, Stockholms Tingsrätt (Aug. 31, 2017), 

http://www.stockholmstingsratt.se/Om-tingsratten/Nyheter-och-pressmeddelanden/Extended-time-for-theprosecutor-to-bring-charges-in-the-case-of-suspected-terrorist-crime-in-Stockholm3/, archived at 

https://perma.cc/9LX7-6ZVH. 

12 Press Release, Svea Hovrätt [Svea Court of Appeals] (Dec. 22, 2015), http://www.svea.se/Om-Sveahovratt/Nyheter-fran-Svea-hovratt/Svea-hovratt-faststaller-livstidsdomen-for-morden-pa-IKEA/, archived at

https://perma.cc/NC59-MRXA (judgement on file with author).. 
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II. Swedish Citizenship

Swedish citizenship is acquired through birth or through naturalization.13 Children born after 

2015 to either a Swedish mother or father (regardless of their marital status), in Sweden or 

abroad, acquire Swedish citizenship at birth. 14 In addition, persons may acquire citizenship 

through application or naturalization.15 To acquire citizenship through naturalization a person 

must have resided permanently in Sweden for a minimum of two years (Nordic citizens), four 

years (stateless persons or refugees), or five years (everyone else).16 A child who at birth has 

permanent residency (i.e., is a child of a person who has permanent residency) and who would 

otherwise become stateless acquires Swedish citizenship at birth.17

III. Illegal Immigration

A. General Considerations

Persons who are present in Sweden without the proper documentation (residence permits, visas, 

or citizenship) are referred to as “undocumented persons.” Undocumented persons in Sweden 

are typically individuals who entered Sweden to seek asylum and then remained in Sweden after 

being denied permanent or temporary residence as refugees or under subsidiary protection.

18

Previously, a person who had been denied asylum could reapply for asylum after the person had 

left and then re-entered the country. In 2005 the Swedish Parliament adopted a statute of

limitations (preskriptionstid) on asylum decisions, mandating that a person could not reapply as 

an asylum seeker unless four years had passed since the person last applied for asylum.19 Ahead 

of the 2018 national elections in Sweden, the Moderate Party (the largest opposition party) has 

said that they want to extend the statute of limitations to eight years.20

 13 LAG OM SVENSKT MEDBORGARSKAP [ACT ON SWEDISH CITIZENSHIP] (SFS 2001:82), http://www.notisum.se/rnp/ 

sls/lag/20010082.HTM, archived at https://perma.cc/CSH8-2MVN. 

14 Id. 2 §.

15 Id. 11§.

16 Id.

17 Id. 6 §.

18 Examples of undocumented persons and their stories are available at Röster från skuggsamhället - att leva som 

papperslös i Sverige, RÖDAKORSET [RED CROSS] (Apr. 17, 2015), http://www.redcross.se/press-ochopinion/rapporter/roster-fran-skuggsamhallet---att-leva-som-papperslos-i-sverige/, archived at

https://perma.cc/S6B4-V5Q8. “Subsidiary protections” are protections based on the person being subject to corporal 

punishment, torture, or the death sentence if returned to his or her home country. See Asylum Regulations, 

MIGRATIONSVERKET (May 29, 2017), https://www.migrationsverket.se/English/Private-individuals/Protection-andasylum-in-Sweden/Applying-for-asylum/Asylum-regulations.html, archived at https://perma.cc/D6MS-DGME.

19 12 kap. 22 § UTLÄNNINGSLAG [UTL] [ALIENS ACT] (SFS 2005:716), http://www.notisum.se/rnp/sls/ 

lag/20050716.htm, archived at https://perma.cc/32XW-Y8BZ; Prop. 2004/05:170, https://data.riksdagen.se/fil/ 

2D693F72-D485-41F5-AF85-11DADFBFCA2C, archived at https://perma.cc/9QNF-UD5V. 

20 Moderaternas nya utspel om papperslösa i Sverige [The Moderates’ New Gambit on Undocumented Persons in 

Sweden], EXPRESSEN (Apr. 23, 2017), http://www.expressen.se/kvallsposten/moderaternas-nya-utspel-ompapperslosa-i-sverige/, archived at https://perma.cc/M54D-E4ZN. 
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There are currently 12,500 persons who have been denied asylum who are listed with the police

because they are evading deportation.

21 The number of persons who have been denied asylum 

that are listed with the police is comparatively small in relation to the total number of denied 

applicants; 15,401 persons had their asylum applications denied during the month of July of 

2017 alone.

22 According to news reports, an estimated 8,000 undocumented persons are 

registered as taxpayers with the Swedish Tax Authority.23 Reports from Swedish media and the 

Swedish police indicate that as a result of the 2015 shift in policy, whereby fewer persons are 

granted residence permits, more asylum seekers are staying as undocumented in Sweden, waiting 

for the four year statute of limitations to run.24 Swedish state media (Sveriges Radio) reports that 

a smaller percentage of persons reapplying for asylum are having their original denials 

overturned.

25 In 2011, 61% of those who reapplied were successful, that number had fallen to 

5% by the first six months of 2017.26 According to news reports, the Swedish Police are worried

that the number of undocumented persons living in Sweden will rise. 27 During recent 

parliamentary debates it was predicted that some 80,000 persons live as undocumented 

immigrants in Sweden and that the number will rise.28

 21 Frågor och svar om verkställighet, POLISEN (Mar. 7, 2017), https://polisen.se/Om-polisen/Specialkompetenser/ 

Granspolisen/Fragor-och-svar-om-verkstallighet/, archived at https://perma.cc/L6AH-PD3C. 

22 Avgjorda asylärenden beslutade av Migrationsverket, förstagångsansökningar 2017 [Decided Asylum Cases, 

First-Time Applications, 2017], MIGRATIONSVERKET (Sept. 8, 2017), https://www.migrationsverket.se/ 

download/18.4100dc0b159d67dc6146d1/1505293104409/Avgjorda+asyl%C3%A4renden+2017+-

+Asylum+decisions+2017.pdf, archived at https://perma.cc/Q3PT-2RH8.

23 Tusentals papperslösa arbetar vitt – utan tillstånd [Thousands of Undocumented Persons Pay Taxes – Without a 

Work Permit], SVD (July 11, 2017), https://www.svd.se/sommar-papperslos-1-tusentals-papperslosa-arbetar-vitt--

utan-tillstand.

24 De förbereder ett liv som papperslösa [They Prepare a Life as Undocumented], SVERIGES RADIO (May 10, 2017), 

http://sverigesradio.se/sida/artikel.aspx?programid=86&artikel=6692109, archived at https://perma.cc/C5XDCAJC; Arne Larsson, Så många fler kan bli papperslösa i Sverige [This Many More May Become Undocumented in 

Sweden], GP (July 3, 2017), http://www.gp.se/nyheter/sverige/s%C3%A5-m%C3%A5nga-fler-kan-blipappersl%C3%B6sa-i-sverige-1.4407850, archived at https://perma.cc/K5NB-4PC3. 

25 Mindre vanligt att de som fått avslag får asyl på andra försöket [Less Common that Persons Whose Applications 

are Denied Get Asylum on Second Try], SVERIGES RADIO (July 15, 2017), http://sverigesradio.se/sida/gruppsida. 

aspx?programid=83&grupp=23921&artikel=6736226, archived at https://perma.cc/EML8-M4GQ.

26 Id. 

27 Polisen oroad över fler papperslösa, SVERIGES RADIO (Mar. 7, 2017), http://sverigesradio.se/sida/artikel.aspx? 

programid=83&artikel=6647005, archived at https://perma.cc/N4AT-UAQJ. 

28 Sveriges Riksdag, Aktuell debatt om situationen för ensamkommande, Sept. 13, 2017, http://www.riksdagen.se/ 

sv/webb-tv/video/aktuell-debatt/aktuell-debatt-om-situationen-for-ensamkommande_H5C120170913ad, archived at

https://perma.cc/KE9J-D4G6. 
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B. Rights of Undocumented Persons

1. Education

As of 2013 undocumented minors have the same right to a free public primary and secondary 

education as Swedish citizens.

29 This means that children ages six to eighteen have a legal right 

to attend school (elementary through high school).30 However, unlike legal resident children,

undocumented minors are not mandated to attend school.31 Municipalities may seek state grants 

for the added cost of educating undocumented children.32

2. Health and Dental Care

Undocumented minors, whether born in Sweden or elsewhere, have the same right to health care 

and dental care as a native-born Swedish citizen child.33

Undocumented adults also have the right to health and dental care in Sweden, but only to urgent 

care (defined by law as “care that cannot wait”), prenatal care, abortion care, and birth control.34

An estimated 30,000 undocumented persons received health care in Sweden in 2015.35 This 

figure likely includes undocumented EU migrants (persons who are EU citizens but have no

documentation of such citizenship and no legal right to remain in Sweden, as they are not 

working in Sweden).36

 29 29 kap. 2 § SKOLLAGEN [SCHOOL ACT], as amended through SFS 2013:298 (SFS 2010:800), 

http://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/skollag-2010800_sfs-2010-

800#K29, archived at https://perma.cc/G5VX-3NUM; REGERINGENS PROPOSITION [PROP.] 2012/13:58 UTBILDNING 

FÖR BARN SOM VISTAS I LANDET UTAN TILLSTÅND, http://www.regeringen.se/49b728/contentassets/e2030 

b7559b140ab8e59b85c5415346f/utbildning-for-barn-som-vistas-i-landet-utan-tillstand-prop.-20121358, archived at

https://perma.cc/2BBC-U7TV. See also Papperslösa barn i skolan, SKOLVERKET, https://www.skolverket. 

se/regelverk/mer-om-skolans-ansvar/papperslosa-barn-1.205221, archived at https://perma.cc/CNK6-BZDP. 

30 Id. 

31 Id.

32 Statsbidrag för utbildning för barn som vistas i landet utan tillstånd [State Grants for Education of Children that 

are Present in the Country Without Permits], SKOLVERKET, https://www.skolverket.se/skolutveckling/statsbidrag/ 

grundskole-och-gymnasieutbildning/papperslosa-barn-1.203490 (last visited Sept. 19, 2017), archived at 

https://perma.cc/4UFV-USGR. 

33 6 § LAG OM HÄLSO- OCH SJUKVÅRD TILL VISSA UTLÄNNINGAR SOM VISTAS I SVERIGE UTAN NÖDVÄNDIGA 

TILLSTÅND (SFS 2013:407), http://www.notisum.se/rnp/sls/lag/20130407.htm, archived at https://perma.cc/8DDQ4U6X.

34 7 § LAG (2013:407) OM HÄLSO- OCH SJUKVÅRD TILL VISSA UTLÄNNINGAR SOM VISTAS I SVERIGE UTAN 

NÖDVÄNDIGA TILLSTÅND. For examples of health care provided and costs, see Healthcare in Sweden for AsylumSeekers, People with No Papers and People in Hiding, 1177 VÅRDGUIDEN (Nov. 11, 2016), https://www.1177.se/ 

Other-languages/Engelska/Regler-och-rattigheter/Vard-i-Sverige-om-man-ar-asylsokande-gomd-eller-papperslos/, 

archived at https://perma.cc/F7QT-5NYC.

35 30 000 “papperslösa” fick vård i Sverige – men regelverket är otydligt [30,000 Undocumented Received Health 

Care in Sweden – But the Legal Framework Is Unclear], DAGENS JURIDIK (Apr. 30, 2016), http://www.dagens 

juridik.se/2016/04/30-000-papperslosa-fick-vard-i-sverige-men-regelverket-ar-otydligt, archived at 

https://perma.cc/84H4-B6VA. 

36 Id. 
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3. Social Benefits (Social Welfare Services) and Housing Benefits

Undocumented persons living in Sweden only have a limited legal right to social welfare.37

However, certain municipalities, such as Malmö, give undocumented minors full financial aid 

with reference to the legal obligation to consider “the best interest of the child.”38 Consequently, 

Malmö provides undocumented families with full financial support, including child benefits and 

housing benefits, in order for the child to enjoy a “decent living situation.”39 This means that 

minors receive between SEK 2,500 (approximately US$314) and 3,000 (approximately US$376) 

a month from the local authorities, whereas an adult receives SEK 1,700 (approximately 

US$213) per month in financial aid.

4. Prior to 2015

Prior to the refugee crisis of 2015 a person whose asylum application had been denied still had 

the right to social benefits including free room and board at special migration authority operated

housing.

40 Following legal changes, there is no longer any such right in Sweden. However, as 

in the case with Malmö above, certain municipalities have chosen to provide these benefits, even 

though they are not mandated to do so. 

IV. Pathways to Legal Residence and Citizenship for Illegal Immigrants

A. Children

Sweden does not have a special track for undocumented minors to attain permanent residency.

Nevertheless, years spent in Sweden may be considered a factor in identifying synnerligen 

ömmande omständigheter (exceptionally distressing circumstances, historically referred to as 

“humanitarian grounds”) when determining if someone should receive asylum.41 For children 

 37 LAGEN OM MOTTAGANDE AV ASYLSÖKANDE M.FL (SFS 1994:137) [ACT ON RECEIVING ASYLUMSEEKERS],

https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-1994137-om-mottagandeav-asylsokande-mfl_sfs-1994-137, archived at https://perma.cc/SC57-H3PQ; 4 kap. 2 § SOCIALTJÄNSTLAGEN [SOL]

[SOCIAL WELFARE ACT] (SFS 2001:453), http://www.riksdagen.se/sv/dokument-lagar/dokument/svenskforfattningssamling/ socialtjanstlag-2001453_sfs-2001-453, archived at https://perma.cc/QPS5-QQDD; see also

Supreme Administrative Court Decision, HFD 2017:33, http://www.hogstaforvaltningsdomstolen.se/Domstolar/ 

regeringsratten/Rättsfall/ HFD 2017 ref. 33.pdf, archived at https://perma.cc/TZ8S-TJZG (detailing that 

undocumented persons do not have a right to social welfare (Socialbidrag) in Sweden but may still have a right to 

financial aid under the Act on Receiving Asylum-seekers).

38 MALMÖ STADSKONTOR, RIKTLINJER FÖR HANDLÄGGNING AV FÖRSÖRJNINGSSTÖD OCH EKONOMISKT BISTÅND FÖR 

LIVSFÖRING I ÖVRIGT, http://malmo.se/download/18.1d68919c1431f1e2a9636e7/1491303412408/Riktlinjer 

+för+handläggning+av+försörjningsstöd+och+ekonomiskt+bistånd_Malmö+stad.pdf, archived at

https://perma.cc/VM5U-MAKS.

39 Id. at 13. Accordingly, financial benefits are made with reference to the Social Welfare provisions 2 a kap 2 § 

SOCIALTJÄNSTLAGEN (SOL). 

40 See Supreme Administrative Court Decision HFD 2014:37, https://lagen.nu/dom/hfd/2014:37, archived at

https://perma.cc/72M6-XEYA (establishing that a person had a right to social benefits even though he was not 

cooperating in his court-ordered deportation).

41 5 kap. 6 § 1 st. UTL. 
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the test is särskilt ömmande omständigheter (particularly distressing circumstances).

42 Other 

factors considered are the health of the child and the situation in the home country.43 By a 

temporary provision in force between July 20, 2016, and July 19, 2019, the court’s discretion to 

grant residence permits based on synnerligen or särskilt ömmande omständigheter has been 

limited.

44 During this period such permits may only be granted if not granting them would 

violate Sweden’s international obligations.45 Moreover, such permits may only be temporary 

and for an initial period of thirteen months.46 Refugee group representatives want the case law 

to change, so that children over the age of two would be considered as having such a close 

relationship to Sweden as to warrant awarding them legal residency after one year.47

Being or having been undocumented in Sweden is not a bar to later receiving asylum or a 

residence permit based on work, school, or family.48

Undocumented minors and young adults that attend school may receive a temporary residence 

permit to complete school.49 As of June 1, 2017, a minor who has attended high school while 

either an undocumented person or while his or her resident permit application was pending may 

apply for a temporary residence permit to finish high school.50 Completion of a high school 

education is thought to help that person to receive an employment-based residency permit 

sponsorship.51 Persons under the age of twenty-five cannot be granted a permanent residence 

permit in Sweden based on employment unless they have completed a high school education.52

The amended Act thus provides persons aged seventeen to twenty-five a chance to obtain the 

 42 5 kap. 6 § 2 st UTL; see also Legislative History DS 2014:5 ömmande omständigheter, https://data.riksdagen. 

se/fil/33DFEE45-F34B-48E6-B7E6-465204B82B04, archived at https://perma.cc/2LB4-3AXJ.

43 DS 2014:5 at 16-21.

44 5 kap. 6 § 3 st. UTL; 11 and 12 §§ LAGEN OM TILLFÄLLIGA BEGRÄNSNINGAR AV MÖJLIGHETEN ATT FÅ 

UPPEHÅLLSTILLSTÅND I SVERIGE (SFS 2016:752).

45 5 kap. 6 § 3 st. UTL.

46 12 § LAGEN OM TILLFÄLLIGA BEGRÄNSNINGAR AV MÖJLIGHETEN ATT FÅ UPPEHÅLLSTILLSTÅND I SVERIGE 

(SFS 2016:752).

47 Ömmande omständigheter, FARR, http://www.farr.se/sv/vad-vill-farr/ommande-omstandigheter (last visited Sept. 

15, 2017), archived at https://perma.cc/64MP-8Y6F. 

48 UTL, e contrario. 

49 LAG OM TILLFÄLLIGA BEGRÄNSNINGAR AV MÖJLIGHETEN ATT FÅ UPPEHÅLLSTILLSTÅND I SVERIGE [ACT ON 

TEMPORARY LIMITS ON THE OPPORTUNITY OF RECEIVING A RESIDENCY PERMIT IN SWEDEN] (SFS 2016:752),

https://www.riksdagen.se/ sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-2016752-om-tillfalligabegransningar-av_sfs-2016-752, archived at https://perma.cc/VL38-MZTH.

50 Id.; see also Elin Hofverberg, Sweden: Parliament Votes to Grant Migrants Extended Residence Permits to 

Complete High School, GLOBAL LEGAL MONITOR (June 9, 2017), https://www.loc.gov/law/foreignnews/article/sweden-parliament-votes-to-grant-migrants-extended-residence-permits-to-complete-high-school/, 

archived at https://perma.cc/K46E-4L2E. 

51 Proposition [Prop.] 2016/17:133 on Amendments to the Temporary Act on Residence Permits Regarding High 

School Education at 1, REGERINGEN (Government Offices of Sweden website).

52 17 § 3 st. LAG OM TILLFÄLLIGA BEGRÄNSNINGAR AV MÖJLIGHETEN ATT FÅ UPPEHÅLLSTILLSTÅND I SVERIGE [ACT 

ON TEMPORARY LIMITS ON THE OPPORTUNITY OF RECEIVING A RESIDENCY PERMIT IN SWEDEN] (SFS 2016:752).
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education needed to receive a permanent residence permit. A permanent residence permit can be 

given to a person who holds a job and can provide for him or herself.53

B. Adults

Sweden has not offered universal amnesty for undocumented persons staying in Sweden. 

Similar to the test of särskilt ömmande omständigheter for children, adults may be granted 

residency permits based on synnerligen ömmande omständigheter. 54 Typically, physical 

presence in Sweden for a long period of time is not by itself enough to grant an adult without 

children legal residence in Sweden.55

Adults who have been residing in the country illegally are not barred from later becoming legal 

residents or citizens.

56 To become a permanent resident an undocumented individual must be 

granted a permanent resident permit based on asylum, employment, or family grounds.

57

Thereafter the person must remain a permanent resident of Sweden for four years (refugees) or 

five years (everyone else) in order to become a Swedish citizen.58

Case law examples of when permanent residence has been awarded to adults who have lived in 

Sweden illegally include MIG 2011:2759 and MIG 2009:2.60

 53 Id. 17 § 2 st.

54 5 kap. 6 § 1 st UTL. For more on temporary limitations on applying this provision see Part III(A), above. 

55 MIG 2007:15 (Supreme Migration Court), https://lagen.nu/dom/mig/2007:15, archived at

https://perma.cc/WDB4-9QJH. 

56 UTL, e contrario. 

57 3. kap; 4 kap.; 5 kap. UTL.

58 11§ LAG OM SVENSKT MEDBORGARSKAP (SFS 2001:82).

59 Supreme Migration Court, MIG 2011:27, https://lagen.nu/dom/mig/2011:27, archived at https://perma.cc/2B46-

LM8X.

60 Supreme Migration Court, MIG 2009:2, https://lagen.nu/dom/mig/2009:2, archived at https://perma.cc/DDP3-

TAK2. 
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Turkey

Wendy Zeldin

Senior Legal Research Analyst

SUMMARY Turkey does not appear to have a program for undocumented child migrants similar to the 

US DACA program. However, there are certain conditions under the country’s laws on 

citizenship and international protection that allow for citizenship or residency based on the 

particular status or best interest of a child. While the government periodically threatens 

deportation of “irregular” migrants, such as undocumented Armenians, in general it seems 

to turn a blind eye to them and allows the existence of schools and hospitals that such 

migrants set up.

I. Turkish Laws on Citizenship

Under the Constitution of the Republic of Turkey, anyone bound to the state through the bond of 

citizenship is a Turk.1 Turkey follows the principle of jus sanguinis; the child of a father or 

mother who is a Turkish citizen is also a Turkish citizen.2 The Constitution also asserts that 

citizenship can be acquired based on the conditions provided by law and forfeited only in cases 

determined by law.3 

The 2009 Citizenship Law provides that Turkish citizenship can be acquired by birth or after 

birth.4 Citizenship acquired by birth will be automatically acquired on the basis of descent or 

place of birth and will be effective from the moment of birth.5 A child born to a Turkish mother 

or a Turkish father in a marriage either in Turkey or abroad, or born to a Turkish mother and

alien father out of wedlock, is a Turkish citizen.6 A child born to a Turkish father and an alien 

mother out of wedlock will acquire Turkish citizenship provided that the principles and 

procedures ensuring the establishment of descent are met.7 As for citizenship based on place of 

 1 CONSTITUTION OF THE REPUBLIC OF TURKEY (as last amended Mar. 17, 2011, by Act No. 6214), art. 66(1), 

http://global.tbmm.gov.tr/docs/constitution_en.pdf, archived at https://perma.cc/PUM7-NG28. 

2 Id. art. 66(2).

3 Id. art. 66(3).

4 Türk Vatandaşlığı Kanunu [Turkish Citizenship Law], No. 5901, May 29, 2009, as last amended effective Jan. 6, 

2017), art. 5, RESMÎ GAZETE [OFFICIAL GAZETTE], No. 27256 (June 12, 2009), http://www.mevzuat.gov.tr/ 

MevzuatMetin/1.5.5901.pdf, archived at https://perma.cc/RJ4E-4AUW, English translation available at http://eudocitizenship.eu/NationalDB/ docs/TUR%20Turkish%20citizenship%20law%202009%20%28English%29.pdf, 

archived at https://perma.cc/PPS4 -BM3B. For the Law’s implementation regulations, see Türk Vatandaşliği 

Kanunun Uygulanmasina İlişkin Yönetmelik [Implementation Regulation of the Law on Turkish Citizenship], 

2010/139, RESMÎ GAZETE, No. 27554 (Apr. 6, 2010), http://www.resmigazete.gov.tr/eskiler/ 2010/04/20100406-

9.htm, archived at https://perma.cc/JN3T-SMQE. 

5 Turkish Citizenship Law art. 6(1).

6 Id. art. 7(1) & (2).

7 Id. art. 7(3).
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birth, a child who is born in Turkey and who has not acquired “the citizenship of any state by

birth through his/her alien mother or father is a Turkish citizen from the moment of birth.”8 In 

addition, any child (defined as a person under the age of eighteen9

) found in Turkey is deemed to 

have been born in Turkey unless otherwise proven.10 Citizenship may be acquired after birth

either by a decision of the competent authority if certain conditions are met, by adoption, or by 

the right to choice of citizenship.

11 

Under the 2013 Law on Foreigners and International Protection, a “foreigner” is defined as any 

person who does not have a citizenship bond with Turkey.12 The Law “provides for specific 

deportation procedures to ensure consistent and humane treatment for unauthorized migrants and 

other removable noncitizens, including “limiting detention in removal centers to six months (or 

up to a year in cases of noncooperation).”13 The Law lists among the persons who are subject to 

removal those who “breach the terms and conditions for legal entry into or exit from Turkey” 

and those determined to have entered Turkey despite an entry ban.

14 However, persons 

exempted from a removal decision include those who would be at risk in case of travel “due to 

serious health condition, age, or pregnancy,” with assessment of the eligibility for exemption 

made on a case-by-case basis.15 Moreover, the Law provides for issuance of a humanitarian 

residence permit in cases, for example, “where the best interest of the child is of concern,” where 

removal is “not reasonable or possible,” and when “extraordinary circumstances exist.”16 The 

permit is granted upon approval of the Ministry of Interior for a maximum period of one year 

and is renewable by the relevant governorate “without seeking the conditions for other types of 

residence permits.”17 The Law also contains provisions to protect stateless persons.18

 8 Id. art. 8(1).

9 Yabancılar ve Uluslararası Koruma Kanunu [Law on Foreigners and International Protection], No. 6458, Apr. 4, 

2013 (in force Apr. 11, 2014, as last amended effective Aug. 25, 2017), art. 3(1)(e), http://www.mevzuat.gov. 

tr/MevzuatMetin/1.5.6458.pdf, archived at https://perma.cc/Z823-FKUZ, unofficial English translation available on 

the website of the Republic of Turkey Ministry of Interior Directorate General of Migration Management, at

http://www.goc.gov. tr/files/files/eng_minikanun_5_son.pdf, archived at https://perma.cc/9VPV-GWYZ.

10 Turkish Citizenship Law art. 8(2).

11 Id. art. 9(1). The Law points out, however, that “fulfilment of the stipulated conditions does not grant that person 

an absolute right in the acquisition of citizenship.” Id. art. 10(1).

12 Law on Foreigners and International Protection art. 3(1)(ü).

13 Rebecca Kilberg, Turkey’s Evolving Migration Identity, MIGRATION POLICY INSTITUTE (July 24, 2014), 

http://www.migrationpolicy.org/article/turkeys-evolving-migration-identity, archived at https://perma.cc/L4VAL954; Law on Foreigners and International Protection art. 57(3). 

14 Law on Foreigners and International Protection art. 54(1)(h) & (ı).

15 Id. art. 55(1)(b) & (2).

16 Id. art. 46(1)(a), (b) & (f).

17 Id. art. 46(1). Foreigners who have been granted the permit must register with the address-based registration 

system within twenty working days of the permit issuance date. Id. art. 46(2).

18 Id. arts. 50 & 51.
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II. Treatment of Irregular Migrants

A. Terminology

The Law on Foreigners and International Protection uses the terms “regular migration” and 

“irregular migration” (düzensiz göç) to distinguish entry into, stays in, or exits from the country 

through legal versus illegal channels.19 The Directorate General of Migration Management

(DGMM)20 defines “irregular migration” more specifically as

entry into or stay in the country through illegal channels or entry into the country legally 

but not leaving the country within the period granted them to leave. Irregular migration 

should be assessed separately for destination, transit and origin country.

For the countries of destination, irregular migration includes the persons who enter into 

the country illegally or who enter the country legally but do not leave the country within 

the period granted them to leave while for the countries of origin, it includes the persons 

who cross the border of the country without complying with the necessary obligation for 

leaving her/his country. For the countries of transit, it includes the persons who enter the 

country legally or illegally in order to arrive in the country of destination from the 

country of origin and use this country as a transit country and leave its border.21

An “irregular migrant” (düzensiz göçmen) is defined in a Turkish-language Glossary of 

Migration Terms as “[a] person who lacks legal status in the transit or host country due to illegal 

entry or expiration of the visa.”22

B. Practice

Turkey does not appear to have an official program similar to the Deferred Action for Childhood 

Arrivals (DACA) program of the United States, but in reality the children of irregular migrants 

are generally allowed to stay in the country.

According to a 2015 news report, the Turkish government allows citizens of its neighboring 

Asian countries to enter Turkey freely, with the result that citizens of those countries, “such as 

Georgia, Moldova, Ukraine, and Armenia come to Turkey to make a better living, entering 

 19 Id. art. 3(1)(ı).

20 The DGMM is responsible for developing migration-related legislation and strategies; coordinating efforts to 

combat irregular migration; standardizing migration practices; registering and determining potential refugees’ status; 

and ensuring protection for human trafficking victims, stateless persons, and recipients of temporary protection. 

Kilberg, supra note 13; Law on Foreign and International Protection arts. 103–104.

21 Irregular Migration: General Information, DIRECTORATE GENERAL OF MIGRATION MANAGEMENT OF THE 

MINISTRY OF INTERIOR OF THE REPUBLIC OF TURKEY, http://www.goc.gov.tr/icerik6/general-information_ 

917_1062_8874_icerik (last visited Sept. 13, 2017), archived at https://perma.cc/LV47-R4ZQ. 

22 GÖÇ TERIMLERI SÖZLÜĞÜ [GLOSSARY OF MIGRATION TERMS], No. 18 (IOM, 2009), http://www.goc.gov.

tr/files/files/goc_terimleri_sozlugu.pdf, archived at https://perma.cc/J9V5-QQ56.
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without visas or on tourist visas and then overstaying those visas.”23 While some Armenians 

have stayed in Turkey for many years, “others are new arrivals. Their exact numbers are 

unclear, as the bulk of them are undocumented.”24 Yasar Yakis, former Foreign Minister, 

estimated there were 70,000 undocumented Armenians in Turkey in 2006.

25 Reuters reported in 

2016 that between 10,000 to 30,000 undocumented Armenians lived in Istanbul, numbers 

“dwarfed by the 3 million Syrians and hundreds of thousands of Iraqis who have fled war” and 

arrived in Turkey.26

It appears that these irregular migrants are generally tolerated; thus, a de facto hidden Armenian 

secondary school set up in 2008, with the diploma it provides recognized in Armenia, continued 

to grow with the influx of more immigrants from Armenia over time.

27 The school’s students 

cannot officially enroll in Turkey’s minority schools in Turkey; “[t]hey can only be guest 

students and receive an education without getting a diploma at the end of their studies.”28

Although Turkish authorities know about the school, they reportedly tolerate it, and “Turkey’s 

Directorate General of Foundation . . . even provided food supplies to the school, although the 

textbooks are brought from Armenia.”29 Periodically, however, the government issues threats of 

deportation; for example, on April 15, 2015, Turkish President Recep Tayyip Erdogan stated that 

“Turkey retained the right to deport the estimated 100,000 non-Turkish Armenian nationals 

working in Turkey.”30

III. Syrian Refugees under Temporary Protection 

Syrian refugees in Turkey are handled in accordance with the Law on Foreigners and 

International Protection and other measures, such as a by-law of January 15, 2016, allowing 

Syrians under temporary protection access to the labor market, and the Turkey-European Union 

Action Plan on Migration, under which the EU committed to the allocation of €3 billion (about 

US$3.6 billion) “to be used for the urgent needs of Syrians in Turkey, such as education and 

health.” The EU has pledged to allocate an additional €3 billion by 2018.

31

 23 Umut Uras, Armenian Immigrants Look for a Better Life in Turkey, AL JAZEERA (Apr. 20, 2015), 

http://www.aljazeera.com/news/2015/04/armenian-immigrants-life-turkey-150420070803126.html, archived at

https://perma.cc/4G52-JQ83. 

24 Id.

25 Id.

26 Ayla Jean Yackley, Armenian Migrants in Turkey Live in Shadow of Century-Old Massacre, REUTERS (Apr. 24, 

2016), http://www.reuters.com/article/us-turkey-armenia/armenian-migrants-in-turkey-live-in-shadow-of-centuryold-massacre-idUSKCN0XL059.

27 Uras, supra note 23.

28 Id.

29 Id.

30 Id.

31 Implementation of Turkey-EU Agreement of 18 March 2016, MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF 

TURKEY, http://www.mfa.gov.tr/implementation-of-turkey_eu-agreement-of-18-march-2016.en.mfa, archived at

https://perma.cc/A4XF-BUEE.
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Of the Syrians in Turkey needing special protection, more than three-quarters are children and 

women; 44% are children under the age of eighteen, and 12% of those with temporary protection 

status as of July 2017 were age four and under.32 Reportedly, “[b]etween May 2011 and May 

2017, more than 224,000 babies were born in Turkey to displaced Syrians. For the time being, 

most of these children are stateless, as they are neither granted Turkish nor Syrian citizenship at 

birth.”33 Because the prospects for the refugees’ return to Syria are bleak for the near future, 

education of the children is a major concern; of more than 967,000 school-aged Syrian children 

in Turkey, “492,000 (50.8 percent) are receiving education, despite the language barrier and 

limited capacity of schools,” a number “expected to reach 650,000 (65 percent) in the 2017–18 

academic year.”34 However, “60 percent of these students are being taught in Arabic, under a 

Syrian curriculum, in ‘temporary education centers,’” with the education of questionable quality

and “not optimal for the integration of students into Turkish society.”35

 32 M. Murat Erdoğan, Thinking Outside the Camp: Syrian Refugees in Istanbul, MIGRATION POLICY INSTITUTE

(Aug. 9, 2017), http://www.migrationpolicy.org/article/thinking-outside-camp-syrian-refugees-istanbul, archived at

https://perma.cc/XED4-33EQ. 

33 Id.

34 Id.

35 Id. The author adds that “more than 450,000 children have not been in a classroom since 2011, potentially 

representing a lost generation.” Id.
The Law Library of Congress 79

United Kingdom

Clare Feikert-Ahalt

Senior Foreign Law Specialist 

SUMMARY The United Kingdom has a robust system of laws relating to immigration and citizenship 

and it actively enforces these laws. It has recently moved to a points-based migration 

system to help retain talented migrants in the country. Entry through many of the pointsbased system options provides a path to citizenship, if a continuous residence requirement 

is met. 

The UK Border Agency is responsible for policing the borders around the UK, and works 

to ensure that those entering the UK do so with proper authorization. Illegal immigration

continues to occur despite the relatively robust border controls that exist and the hefty civil 

penalties that individuals who hire illegal immigrants face. There are a number of criminal 

offenses that specifically apply to individuals in the country illegally, including entering 

the country without due authorization, overstaying visas, breaching conditions attached to 

visas, and assisting illegal immigrants. Illegal immigrants caught in the UK face 

deportation and/or criminal prosecution.

Immigration rules enable certain children unlawfully resident in the UK and adults who 

have resided unlawfully in the country for long periods of time to regularize their status, if 

continuous residence and other requirements are met.

I. Introduction

The United Kingdom of Great Britain and Northern Ireland (UK) is the collective name of four 

countries: England, Wales, Scotland, and Northern Ireland. The four separate countries were 

united under a single Parliament in London, known as the Parliament at Westminster, through a 

series of Acts of Union. The United Kingdom recently has undergone a period of devolution 

with the creation of a Scottish Parliament, a Welsh Assembly, and a Northern Ireland Assembly 

(currently suspended) that can legislate in certain areas. Citizenship and nationality1 are not 

devolved areas, however, and remain the responsibility of the Parliament at Westminster. The 

Secretary of State for the Home Department (a member of the British executive branch) and his 

department, commonly referred to as the Home Office, has responsibility for immigration and 

nationality issues.

 1 “Nationality” refers to the status of those individuals who are British citizens, British subjects with the right of 

abode in the United Kingdom and thus outside the scope of the United Kingdom’s immigration control, and citizens 

of British Overseas Territories. In this report, the term “citizenship” is used to include nationality. These terms are 

commonly interchanged. Nationality has been defined as a person’s international identity that demonstrates they 

belong to a state, as evidenced by a passport. Citizenship has been considered to be more “a matter of law 

determined by the facts of a person’s date and place of birth, those of their parents and the application of the 

provisions of the relevant legislation,” and concerns with the rights, duties, and opportunities that a person has 

within a state, such as voting rights, military service, and access to healthcare. LAURIE FRANSMAN, FRANSMAN’S 

BRITISH NATIONALITY LAW 12 (2d ed. 1998).
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Since 1891 it has been established at common law that “no alien has any right to enter [what is 

now the UK] except by leave of the Crown.”2 The Aliens Restriction Act 1914,3 the Aliens 

Restriction (Amending) Act 1919, 4 and Rules and Orders made under these Acts 5 gave the 

common law a statutory basis and formed the restrictions on immigration for much of the 

twentieth century. The statutory regime governing immigration in the UK is currently contained 

in the Immigration Act 19716 and the Immigration Rules7 made under it. The Immigration Rules 

are not legislation or regulations per se, but are published as House of Commons Papers and are 

considered to be part of the law.8

 

Section 3 of the Immigration Act requires individuals who are neither British or Commonwealth 

citizens with the right of abode in the UK, nor members of the European Economic Area, to 

obtain leave to enter the UK from an immigration officer upon their arrival. 

II. Illegal Immigration

The UK government varies between calling individuals present in the country without 

authorization “illegal immigrants” and “irregular migrants.”9 In June 2017, the former head of 

immigration enforcement at the Home Office was reported as estimating that there were more 

than 1.2 million illegal immigrants living in Britain, stating that most of those were individuals 

who entered the country legally but overstayed the period of time they were granted leave

to remain.

10 

 2 Musgrove v. Chun Teeong Toy, [1891] A.C. 272, followed in Schmidt v. Home Office, [1969] 2 Ch. 149.

3 Aliens Restriction Act, 1914, 4 & 5 Geo. 5, c. 12. 

4 Aliens Restriction (Amendment) Act, 1919, c. 92, http://www.legislation.gov.uk/ukpga/Geo5/9-10/92/data.pdf, 

archived at http://perma.cc/95WC-LYK4.

5 Aliens Order, (1920) Stat R. & O. 448, as amended.

6 Immigration Act 1971, c. 77, http://legislation.data.gov.uk/ukpga/1971/77/data.htm?wrap=true, archived at

http://perma.cc/F2UG-QVBU.

7 Immigration Rules, HOME OFFICE, https://www.gov.uk/guidance/immigration-rules (last updated Aug. 10, 2017),

archived at http://perma.cc/7J5G-HWK7; R v. Chief Immigration Officer, Heathrow Airport, ex. p. Salamat Bibi, 

[1976] 3 All ER 843 (CA) (per Roskill, L.J.: “these rules are [not administrative practice and are] just as much 

delegated legislation as any other form of rule making activity . . . [and] to my mind, are just as much a part of the 

law of England as the 1971 Act itself.”).

8 Immigration Rules, supra note 7.

9 See, e.g., Home Office, Guidance: Code of Practice on Illegal Immigrants and Private Rented Accommodation

(May 25, 2016), https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice/code-ofpractice-on-illegal-immigrants-and-private-rented-accommodation-for-tenancies-starting-on-or-after-1-february2016, archived at https://perma.cc/533G-P58A; Long-Term International Migration – Frequently Asked Questions 

and Background Notes, OFFICE FOR NATIONAL STATISTICS (Aug. 24, 2017), https://www.ons.gov.uk/people 

populationandcommunity/populationandmigration/internationalmigration/methodologies/longterminternationalmigr

ationfrequentlyaskedquestionsandbackgroundnotes, archived at https://perma.cc/2Y43-JFJA; Legal Guidance: 

Immigration, CROWN PROSECUTION SERVICE, http://www.cps.gov.uk/legal/h_to_k/immigration/ (last visited Sept. 

12, 2017), archived at https://perma.cc/C3T2-44RY.

10 Kate McCann, Hundreds of Thousands of Illegal Immigrants Drop off Radar in the UK Every Year According to 

Secret Figures, THE TELEGRAPH (London) (June 16, 2017), http://www.telegraph.co.uk/news/2017/06/15/hundredsthousands-illegal-immigrants-drop-radar-uk-every-year/, archived at https://perma.cc/B3NC-CPE7 (scroll down for 
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The UK has a considerable amount of legislation designed to both make it difficult for illegal 

immigrants to remain in the UK and to facilitate their removal, while complying with its 

obligations under the European Convention on Human Rights. Part 3 of the Immigration Act 

provides for a number of criminal offenses that apply to both illegal immigrants and those who 

aid them. They are extensive and include the offenses of illegally entering the country; 11

entering the country by deception; overstaying visas; and violating the terms of a visa, such as by 

working if this is not authorized.12 Assisting unlawful entry into the UK,

13 employing an illegal 

immigrant, and renting private accommodation 14 to an illegal immigrant are all criminal 

offenses.

15 Recent legislation now prohibits illegal immigrants from having a UK driver’s 

license and opening bank accounts in the UK.

16

The Migration Observatory at the University of Oxford describes the UK as having three

methods of dealing with illegal immigrants: 

• administrative action and removal by the UK Border Agency;

• deportation for individuals and their children whose removal the Secretary of State considers 

conducive to the public good;17 or 

• assisting voluntary departure.

18

While the legal framework applicable to illegal immigrants is strict, certain exceptions can be 

made for children who were born in the UK, as well as adults present illegally in the UK for a 

long period of time, as discussed below.

 

text); Irregular Migration in the UK: Definitions, Pathways and Scale, THE MIGRATION OBSERVATORY AT THE 

UNIVERSITY OF OXFORD (July 11, 2011), http://www.migrationobservatory.ox.ac.uk/resources/briefings/irregularmigration-in-the-uk-definitions-pathways-and-scale/, archived at https://perma.cc/4WTX-BBG8. 

11 Immigration Act 1971, c. 77, § 24.

12 Id. § 24(1)(i), (ii). 

13 Id. § 25. 

14 Immigration Act 2014, c. 22, § 22, http://www.legislation.gov.uk/ukpga/2014/22, archived at 

https://perma.cc/9GD8-FAEC. See also Guidance: Code of Practice on Illegal Immigrants and Private Rented 

Accommodation, HOME OFFICE AND UK VISAS AND IMMIGRATION (updated May 25, 2016), https://www.gov.uk/ 

government/publications/right-to-rent-landlords-code-of-practice/code-of-practice-on-illegal-immigrants-andprivate-rented-accommodation-for-tenancies-starting-on-or-after-1-february-2016, archived at 

https://perma.cc/PU5T-4ZK6. 

15 Immigration, Asylum and Nationality Act 2006, c. 13, § 15, http://www.legislation.gov.uk/ukpga/2006/ 

13/section/15, archived at https://perma.cc/UHM5-BNDC. 

16 Immigration Act 2014, c. 22, §§ 40, 46. 

17 Id. pt. III, § 24(1)(i)–(ii).

18 Deportations, Removals and Voluntary Departures from the UK, THE MIGRATION OBSERVATORY AT THE

UNIVERSITY OF OXFORD (July 19, 2016), http://www.migrationobservatory.ox.ac.uk/resources/briefings/ 

deportations-removals-and-voluntary-departures-from-the-uk/, archived at https://perma.cc/ZC92-6Q9L. See also

Legal Guidance: Immigration, CROWN PROSECUTION SERVICE, http://www.cps.gov.uk/legal/h_to_k/immigration/

(last visited Sept. 13, 2017), archived at https://perma.cc/C3T2-44RY. 
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III. Pathways to Legal Residence and Citizenship for Illegal Immigrants

A. Children

In 2012, Oxford University estimated that 120,000 undocumented children were resident in the 

UK. It believed that 65,000 of these children were born in the UK, which does not provide for 

birthright citizenship.

19 In 2008, the UK withdrew a reservation to the UN Convention on the 

Rights of the Child that had restricted the application of the convention with respect to children 

subject to immigration control. 20 In 2009, section 55 of the Borders, Citizenship and 

Immigration Act was enacted, which placed a duty on the Home Office to safeguard and promote 

the welfare of children as it exercises its functions to enable the UK to comply with the 

provisions of the Convention. Thus, the best interest of the child is now a guiding principle that 

must be followed in making any immigration decisions relating to a child.

21 Failing to follow 

this principle could render any decision made unlawful.22 

As described below, the Immigration Rules enable certain children unlawfully resident in the UK

and those who have resided unlawfully for long periods of time to regularize their status and 

either grant them citizenship, or put them on a pathway toward obtaining citizenship. 

1. Children Born in the UK and Unlawfully Resident for the First Ten Years of Their Life

As noted, citizenship is not automatically granted to babies born in the UK. British citizenship is 

only granted to babies if their birth father or mother is a British citizen or settled in the UK. The 

UK follows the principle of jus sanguinis, which provides that the nationality of a child is the 

same as his or her parents. The British Nationality Act 1981 allows children born in the UK on 

or after January 1, 1983, to parents who were not British citizens or lawfully settled in the 

country to register to become British citizens.23 Children are eligible for citizenship if they are 

ten years of age or older and have lived in the UK, lawfully or otherwise, for the first ten years of 

their life, spending no more than ninety days outside the UK each year.

24 

This citizenship is available to any child born in the UK and does not end at the age of majority 

(eighteen years of age), provided the applicant meets the criteria of being born in the UK and 

19 CORAM CHILDREN’S LEGAL CENTRE, THIS IS MY HOME: SECURING PERMANENT STATUS FOR LONG-TERM

RESIDENT CHILDREN AND YOUNG PEOPLE IN THE UK (June 2017), at 1, http://www.childrenslegalcentre.com/wpcontent/uploads/2017/06/Thisismyhome_ExecSummary.pdf, archived at https://perma.cc/GF2Q-8TF3. 

20 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3, available at https://treaties.un.org/ 

doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-11.en.pdf, archived at https://perma.cc/SU9V-FWRJ. 

21 Borders, Citizenship and Immigration Act 2009, c. 11, § 55, http://www.legislation.gov.uk/ukpga/2009/11, 

archived at https://perma.cc/S4CJ-XGJU. 

22 CORAM CHILDREN’S LEGAL CENTRE, SECURING PERMANENT STATUS: EXISTING LEGAL ROUTES FOR CHILDREN 

AND YOUNG PEOPLE WITHOUT LEAVE TO REMAIN IN THE UK 3 (June 2017), available at http://cdn.basw.co.uk/ 

upload/basw_85040-5.pdf, archived at https://perma.cc/52P5-ABHB. 

23 Borders, Citizenship and Immigration Act 2009, c. 11, ss. 42(5), 58

24 British Nationality Act 1981, c. 61, § 1(4), https://www.legislation.gov.uk/ukpga/1981/61/part/I, archived at 

https://perma.cc/VF7X-3556. 
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continuously residing there for the first ten years of life. To register, the family must complete 

an application and pay £749 (approximately US$1,000).25 Provided all the criteria are met and 

the child is of good character, the application will be granted, and the child will become a British 

citizen with all the benefits that brings. 

2. Children Born in the UK and Unlawfully Resident for Seven Years or More

Children under the age of eighteen who were born in the UK on or after January 1, 1983; who 

have lived in the UK for seven years or more; and for whom returning home would be 

unreasonable may apply for leave to remain on the grounds of the right to respect for private life, 

a legal concept provided for by article 8 of the European Convention on Human Rights.

26 When 

considering whether returning the child to his/her home country is unreasonable, the Home 

Office considers the following: 

1. Whether there would be a significant risk to the child’s health

2. Whether the child would be leaving the UK with their parents 

3. The extent of wider family ties in the UK 

4. Whether the child is likely to be able to reintegrate readily into life in another 

country: 

a. including whether they or their speak, read and write the language

b. whether they or their parents have social or familial ties there

c. if they are entitled to citizenship

d. whether they have visited the country for more than a few weeks

e. whether they have any cultural ties to the country of origin.27

There is no guarantee that an application for discretionary leave to remain will be approved; if 

approved, leave to remain is for a period of two-and-a-half years, after which it may be renewed. 

A service fee of £500 (approximately US$600) for the National Health Service must be paid at 

the same time as a £649 (approximately US$850) application fee. The child will not be eligible 

for benefits upon attaining eighteen years of age. After ten years of continuous residence in this 

status, the individual is entitled to apply for citizenship. 

 25 Home Office, Form T (July 2017), https://www.gov.uk/government/uploads/system/uploads/attachment_ 

data/file/625091/form_t_07_17.pdf, archived at https://perma.cc/43FP-6HBN. 

26 Immigration Rules ¶ 276ADE, https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-7-

other-categories, archived at https://perma.cc/K3WB-TJ8L. European Convention for the Protection of Human 

Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222, available at

http://www.echr.coe.int/Documents/Convention_ENG.pdf, archived at https://perma.cc/TEK3-MLMF. The 

European Convention on Human Rights was incorporated into the national legislation of the United Kingdom by the 

Human Rights Act 1998, c. 42, https://www.legislation.gov.uk/ukpga/1998/42, archived at https://perma.cc/7R9ZQ95V.

27 CORAM CHILDREN’S LEGAL CENTRE, SECURING PERMANENT STATUS, supra note 21, at 19 (citing Home Office, 

IDI Family Migration, App. FM, § 1.0b, Aug. 2015, p. 57), available at http://cdn.basw.co.uk/upload/basw_85040-

5.pdf, archived at https://perma.cc/52P5-ABHB. 
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3. Individuals Between the Ages of Eighteen and Twenty-Four Brought to the UK as a Child

Individuals who are between eighteen and twenty-four years of age, and who have resided 

unlawfully in the UK for more than half of their lives, are another category of persons eligible to 

apply for leave to remain on the grounds of private life. There is no guarantee the application 

will be granted; if granted, leave to remain will be for a period of two-and-a-half years, after 

which it may be renewed. After ten years of continuous residence in this status, the individual 

may apply for citizenship.28

4. Implementation

A report issued in 2015 noted that there had been a low number of applications under these rules, 

with 1,560 applications of leave to remain for children being granted between 2012 and 2015, 

and, during the same period, 1,585 children were granted settlement on a discretionary basis or a 

long period of residence. The report ascribed these low numbers to the complexity of laws in the 

area, a lack of knowledge, a lack of free legal advice and representation, and the high cost of 

application fees.29

B. Adults

Individuals who have lived in the UK unlawfully, or have a mix of lawful and unlawful 

residence, for twenty years or more may apply for leave to remain on the grounds of private 

life.

30 If the application is successful, the individual will be granted leave to remain for two-anda-half years, and this is renewable. Once the individual has lived in the UK continuously with 

leave under these provisions for ten years, he or she may apply for indefinite leave to remain.31 

IV. Conclusion

The provisions outlined in Part III, above cannot be considered in isolation from the UK's 

general immigration law and enforcement efforts. As noted, the UK has robust provisions 

designed to prevent illegal immigrants from remaining in the UK. Legal aid to help unlawful 

immigrants secure access to legal advice has been cut; the policy of deport first, appeal later is 

fully implemented; and illegal immigrants’ access to basic services is severely restricted, which 

not only makes it difficult for them to live in the UK, but also makes it difficult for them to 

provide evidence showing the period of time they have lived in the UK illegally.32

28 Immigration Rules ¶ 276ADE, https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-7-

other-categories, archived at https://perma.cc/K3WB-TJ8L.

29 CORAM CHILDREN’S LEGAL CENTRE, THIS IS MY HOME, supra note 19, Executive Summary. 

30 Immigration Rules ¶ 276ADE, https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-7-

other-categories, archived at https://perma.cc/K3WB-TJ8L. For applications made prior to this date, the old 

rule of fourteen years of continuous unlawful residence must be followed. 

31 Id.

32 Immigration Act: Overview, HOME OFFICE AND UK VISAS AND IMMIGRATION (updated July 16, 2017), 

https://www.gov.uk/government/publications/immigration-bill-2015-overarching-documents/immigration-bill201516-overview-factsheet, archived at https://perma.cc/N9UT-8XS3.