Legal help with OCI cards: eligibility, refusals and rights

Law

Citizenship Act 1955, sections 7A to 7D

Spouse route

Marriage registered, 2 years subsisting

Not eligible

Pakistan or Bangladesh ancestry

Cancellation

Section 7D, after a hearing

Who is eligible for an OCI card

Section 7A allows the Central Government to register as an OCI cardholder a foreign national who:

• was a citizen of India on or after 26 January 1950, or was eligible to become a citizen on that date;
• belonged to a territory that became part of India after 15 August 1947;
• is a child, grandchild or great-grandchild of such a person;
• is a minor child of such persons, or a minor child whose parents are both, or one of whose parents is, an Indian citizen; or
• is the spouse of foreign origin of an Indian citizen or of an OCI cardholder, where the marriage is registered and has subsisted for at least two years immediately before the application.

A person is not eligible if they, or either of their parents, grandparents or great-grandparents, are or have been citizens of Pakistan or Bangladesh, or of another country the government specifies. Serving or retired foreign military personnel are also generally excluded under the government's guidelines. The hardest cases involve proving Indian origin two or three generations back, where old records are incomplete or names are spelt differently; we help assemble and explain that evidence.

Renunciation and surrender before applying

India does not allow dual citizenship. Under section 9 of the Citizenship Act, an Indian citizen who voluntarily acquires another nationality ceases to be an Indian citizen. Before an OCI application can be processed, a former Indian must surrender the Indian passport and obtain a renunciation or surrender certificate through the Indian mission or its outsourced service provider.

• People who used an Indian passport after acquiring foreign citizenship face penalties when surrendering it, and delay increases the problem.
• Where the old Indian passport is lost, a police report and affidavit are usually required.
• Minor children born abroad to Indian parents who hold, or held, an Indian passport may also need the passport surrendered before OCI.

The surrender certificate is also needed for other purposes: banks, property registrars and the income tax department may ask for proof of when you stopped being an Indian citizen, because that date affects your status under FEMA and Indian tax law.

New passport: do you need a new OCI card?

The rules on re-issue were simplified in 2021. In broad terms, a person who obtained OCI before turning 20 needs a re-issued card only once, when a new passport is issued after reaching 20. A person who obtained OCI as an adult does not need a new card merely because the passport is renewed. In each case, the new passport details and photograph should be uploaded on the online OCI portal, and travellers usually carry both the old and new passports. Because airline staff and immigration practice can lag behind rule changes, check the current MHA guidance on the OCI portal before travel; a missed update is a common reason for boarding problems.

What OCI cardholders can and cannot do

OCI cardholders are foreign nationals in law. They hold property and bank accounts under the FEMA rules for persons resident outside India; see FEMA compliance and, before a purchase, buying and selling property.

Refusals and cancellation under section 7D

OCI applications are sometimes refused or kept pending for years without clear reasons. Common causes include insufficient proof of Indian origin, inconsistent names or dates, a missing surrender certificate, ancestry from an excluded country, or an adverse report from the security agencies.

Section 7D allows the government to cancel an OCI registration where it was obtained by fraud, false representation or concealment; the cardholder has shown disaffection towards the Constitution; has unlawfully traded or communicated with an enemy during war; has, within five years of registration, been sentenced to imprisonment for two years or more; where cancellation is necessary in the interests of the sovereignty, integrity or security of India, friendly relations with a foreign country or the general public; or for violation of the Citizenship Act or any other law notified by the government. Since 2019 the section requires that the cardholder be given a reasonable opportunity of being heard before cancellation.

If you receive a show cause notice, reply carefully and in time, with documents. If the card is cancelled or an application refused without proper reasons or hearing, a writ petition in the High Court may be possible. Outcomes in these cases depend heavily on the facts and on any security material the government relies on, so we give a frank assessment before you spend on litigation.

OCI status, tax residence and FEMA

Holding an OCI card does not decide your tax position. Indian income tax residence turns on days spent in India: broadly, 182 days or more in a year, with a lower 120-day threshold in some cases where Indian income exceeds 15 lakh rupees. The deemed residence rule for people who are not taxed anywhere applies to Indian citizens, not to OCI cardholders. An OCI cardholder who spends long periods in India can therefore become tax resident without realising it.

Under FEMA, an OCI cardholder is generally a person resident outside India while living abroad, and keeps NRO and NRE accounts, investments and property under the rules for NRIs and OCIs. If you move to India for employment or an indefinite stay, your FEMA status may change and accounts must be redesignated. We coordinate these questions with chartered accountants so that the citizenship, tax and FEMA positions line up.

Denied boarding or entry

Some OCI cardholders discover a problem only at the airport, because of a blacklisting, a pending criminal matter, or an outstanding Look Out Circular. If you suspect any issue, we can make enquiries and, where needed, approach the authorities or the High Court before you travel rather than after a refusal at the border.

Documents you need

The documents depend on the problem. For most matters, send scans of:

• Current foreign passport and any previous passports
• Old Indian passport, or police report if lost
• Renunciation or surrender certificate, if issued
• Proof of Indian origin: parents' or grandparents' Indian passports, birth certificates or land records
• Marriage certificate, for spouse applications
• Any refusal letter, show cause notice or cancellation order
• Name change documents, if names differ across records
• Existing OCI card and registration certificate

How we handle it for you

1. Review

   We look at your history, documents and any notice or refusal.

2. Plan

   We decide whether to correct and re-apply, reply to a notice, or challenge a decision.

3. Documents

   Affidavits, translations and authentication arranged in your country.

4. Submission or reply

   Application, representation or show cause reply prepared and filed.

5. Escalation

   Follow-up with the authorities and, where justified, a writ petition.

Why clients choose ProudLegal

Frequently asked questions