When can a Foreign Citizen seek refuge in India?18 min read
By K. Manoggnya Reddy
Published On: September 17, 2021, at 13:08 IST
There are various aspects of refugees that India as a country and as a refugee have to consider. One of these is the security considerations that are applicable to the refugees. The security scenario has become more prevalent in the country, which has affected the humanitarian aspect of the situation.
This article is not about the merits of the subject under review. It is about the importance of maintaining the status of international relations and the Union government’s exclusive jurisdiction over these areas. While law and order are a subject under the Union government’s jurisdiction, international relations and the country’s borders are also under its control. This has resulted in various agencies and governments having to deal with the refugee issue.
As a result, the policies related to the refugee problem are also laid out by the Union government that has a role to play in addressing the refugee issue, though it is the State’s responsibility to provide a level of support for the refugees.
Aside from the police officers, there are also thousands of immigration and security personnel at airports and other international facilities that deal with law enforcement regarding refugees.
Security itself denotes that it is the first and foremost duty of all personnel. All the above categories of personnel have been entrusted with the responsibilities of ensuring the country’s security. They have to make sure that the laws are enforced in a way that is not neutralizing or ignoring security considerations. It is also their responsibility to ensure that the humanitarian overtones of the refugee crisis are still present in the minds of the public. Aside from these, refugees also have various human rights aspects. This is why it is very important that the law enforcers take the necessary measures to protect them.
A proper understanding of the refugee situations that arise in different countries would help authorities take care of them properly. This would also enable them to properly implement the laws and regulations related to the refugee issue. Having a good knowledge about the various roles and responsibilities of those who handle refugees would help them look after themselves.
Who is a refugee?
A refugee is a person who has been forced to flee from a country due to war, violence, or persecution. A refugee is afraid of persecution, which makes him or her unwilling to return home. This fear prevents him or her from finding protection in the country where he or she lives.
Who is called an asylum-seeker?
When people flee their home country and seek refuge in another country, they can claim asylum. They must show that their fear of persecution in their home country is well-founded to be considered a refugee. People who fear returning home are protected from forced repatriation until their refugee status is determined by the United Nations High Commissioner for Refugees (UNHCR). UNHCR in India works with individuals from various non-neighbouring nations and Myanmar.
What is the next step after becoming an asylum seeker?
After becoming an asylum-seeker, the refugee status determination process will be carried out to determine the status of the applicant. The objective of the procedure is to determine the refugee status of the individual. This program aims to protect asylum-seekers from arbitrary arrest and deportation.
Currently, many asylum-seekers are subjected to forced return and deportation. In cases where a refugee status is not yet established, UNHCR carries out a refugee assessment based on the country’s refugee definition and also according to the definition of refugee in 1951 Convention relating to the status of the refugees.
According to the Citizenship Act, 1955
It was estimated by the Task force on border Management that around 15 million illegal immigrants live in India. From whom around 12 million illegal immigrants in India are from Bangladesh, the statistics provided by the United Progressive Alliance government in 2004. The reasons for their mass immigration include the country’s porous border and cultural and linguistic ties.
According to Niraja Jayal, the enfranchisement of illegal immigrants from Bangladesh was carried out to win the elections in the country. Abul Barkat, a scholar from Bangladesh, noted that over 11 million Hindus migrated from Bangladesh to India from 1964 to 2013, the main reasons being discrimination and persecution based on religion especially by the military regimes of post-independence. It has been revealed that an undetermined amount of Pakistani Hindu refugees are currently residing in India.
India is not a signatory to the United Nations Refugee Convention or the 1967 protocol. It does not have a refugee policy. All refugees are considered illegal migrants. While India has been accommodating refugees, its traditional position is that these individuals must return home once the situation improves which was introduced by Jawaharlal Nehru.
India has about 456,000 refugee households, with about 200,000 from other countries that are not considered “neighboring” by the support of the UNHRC. These statistics were provided by the US Committee for Refugees and Immigrants.
Shuvro Sarker stated that the country has been studying and drafting laws for the naturalization of asylum seekers and refugees. These drafts have struggled with the issues of addressing the mass influx of refugees, the obligation to protect nomadic tribes, and the cost of basic services. Hindu refugee families in Assam since 1960, who have been denied Indian citizenship, said that the Amendment has “kindled hope” when it was introduced.
They said that the protests against the Act had made them fearful of the future. Hundreds of refugees from Pakistan who live in an area in New Delhi celebrated the new law that recognizes the country’s constitution.
A group of Sikh refugees from Afghanistan thanked the Indian government for its amendment of the citizenship law. They said it would allow them to join the mainstream.
Many of the Rohingya Muslims in India were not optimistic regarding the Amendment. They feared that they would be deported back to Afghanistan. Other refugees expressed gratitude for India allowing them to stay in the country, though they did not make any specific comments about the Act. They were asked not to protest as it could provoke a backlash.
More than 200 families of refugees have arrived in India’s state of Punjab after the country’s law was enacted.
What is the distinction between foreigners and refugees?
While all persons who are not citizens of India are considered foreigners, it is very important that they are clearly identified from other categories of persons. The failure to clearly distinguish the distinction between the various categories of foreigners has led to the misunderstanding about the refugee issue.
The misunderstanding about the various categories of persons, especially due to the massive number of ‘illegal immigrants’ from Bangladesh, who are entitled to refugee status has affected the public discourse about the issue. It is time that the distinction between the refugee and the illegal immigrant is brought home.
There are at least 4 groups of foreigners that are different from refugees. They should be clearly identified so that they do not get confused with or mistaken for the refugee. Such as:
- Tourists or travelers (temporary residents)
For a specific purpose and duration, persons under this category can come to India. In certain circumstances, they may be eligible for refugee status. Some people who are from this category may be considered refugees if they decide to stay in India for a long time. This includes those who may be in danger of their life or personal liberty if they were to get deported to their country of origin.
Many Iranian students who came to India for studies under the Shah of Iran’s regime have stayed back in the country as refugees since the Islamic Revolution in 1978. No one can automatically claim refugee status under this category. The Government of India will decide on the basis of the merits and circumstances, i.e., the sole authority to give that status.
- Illegal immigrants for economic improvement
Any foreigner who left his or her home country without due authority from the authorities concerned is not a refugee, as long as he or she is seeking to improve his economic prospects. As there is no persecution or coercion involved in illegal migration from a country of origin. As long as the individual is treated as an illegal immigrant, he or she will be treated as such under the law.
- Criminals, Spies, Militants etc.
None of these individuals can ever become refugees. These are the laws that are applicable to them in India. They are also subject to the provisions of various special laws and Indian Criminal Acts in the country.
- Internally Displaced Persons
Those who are fleeing persecution or human rights violations in one country and are seeking refuge in another country are considered refugees. People who have not crossed the international border but are residing in the country will not be considered refugees. They have the protection of their country and are not considered refugees. These persons are Internally Displaced Persons (IDP). They are mainly from Jammu and Kashmir. Since they have been forced to flee their homeland, they are considered refugees under the 1951 Convention.
What is the process to claim as a refugee?
The first and Foremost – It is essential that a refugee claimant has all the necessary documents in order to establish a genuine claim for refugee status. These include a variety of documents such as an identity card, employment record, and proof of membership in a certain group.
The purpose of this form is to provide the claimant with evidence of his or her involvement with a particular group, which would prove the claimant’s identity. This would also help gather other details about the individual, such as names of the persecutors and leaders of the group leading persecution and the place it is taking place so that the claim can be solidified.
The claimant must also be able to establish all his or her statements in a consistent manner so that they can be properly presented to the authorities. If there are any obvious contradictions between the various statements made by the claimant to various people at different times, his refugee status may be rejected. It can be rejected even if his statements are different from that of the general situation reported to the public, i.e., the general information available in the Country of Origin.
Establishing corroboration and confirming factual details about persecution are the foundations of a refugee status claim. This process involves gathering background information on various human rights organizations and other non-governmental sources.
Fear of persecution is not an emotion-based test. Instead, it must be used to evaluate a person’s risk of persecution. Those who suffered persecution or may face persecution on return to their country of origin would be able to claim refugee protection.
The refugee determination process is a carefully considered process that involves carefully considering all of the claimant’s evidence. This includes documentary forms and oral testimonies. All the materials collected and gathered by the organization are then tallied with the information available on the region where the claimant has arrived. This information is confirmed by the UNHCR office in the country where the claimant is from if only in certain possible scenarios.
Aside from making refugee claims, refugees also have various rights and responsibilities. They can also seek help and support for various basic needs such as shelter, food, legal aid, and education.
The refugee can also find his own accommodation, as well as share a similar accommodation with another refugee. The UNHCR also helps in facilitating the refugee’s legal aid and other related issues. In cases where a refugee is to be deported, the UNHCR may request the government to delay the deportation proceedings so that the refugee can be resettled in a safe country.
What is the Legal framework for refugees in India?
There are laws which regulate the entry and stay of refugees in India. Upon entering Indian territory, refugees are liable to various provisions of Indian Penal laws for various violations. These include but are not limited to, failure to pay taxes, false imprisonment, and sexual harassment.
- Provisions under the Constitution of India
There are a few articles of the Indian Constitution that are equally applicable to the refugee community on the Indian soil. These articles are as applicable to the Indian Citizens as they are to the refugees.
The Supreme Court has consistently held that the fundamental right to life and personal liberty, which is guaranteed under the Indian Constitution, applies to all irrespective of their status as citizens of India or aliens. This right is also applicable to all foreigners.
The High Court of Guwahati has recognized the role of the UN High Commissioner for Refugees in protecting refugees. It has also allowed refugees to approach the agency for determination of their refugee classification. The Hon’ble High Court of Guwahati has held that refugees can approach the UNHCR for determining their refugee status. It has also stayed the deportation orders of the local courts.
In these following two cases of Gurunathan and others Vs Government of India and others[i] and in A.C. Mohd. Siddique Vs Government of India and others[ii] , the High Court of Madras has expressed its unwillingness to allow any Sri Lankan refugee to be forced to return to their homeland against their will.
In this case of P. Nedumaran Vs Union of India[iii], the Lankan refugee had prayed for a mandamus directing the State of Tamil Nadu and the Union of India to allow the officials of the UNHRC to conduct a follow-up survey of the refugee population to ascertain their voluntariness in going back to Sri Lanka. The Court was pleased to hold that since the UNHCR was involved in the verification of the refugee’s consent to return, it is not subject to the Court’s scrutiny if the consent is voluntary or not.
The Court noted that the representatives of the UNHCR were competent and did their best to represent the refugees. The High Court in case of Syed Ata Mohammadi Vs Union of India[iv], has directed to allow an Iranian refugee to stay in India and not deport him to Iran. The Court also allowed the refugee to travel to any country he desired. The Court further allowed the refugee to travel wherever he or she wanted. This order was in line with the principles of ‘non-refoulement’.
In various cases, the Supreme Court has stayed the deportation of refugee individuals. The court also directed the stay of the deportation of some Andaman Island Burmese refugees. The court noted that since their refugee status was pending before the competent authorities, their stay was ordered. The Supreme Court’s ruling in the case of Khudiram Chakma[v] clearly stated that no one shall be denied his or her liberty or life without due process of law.
The Constitution regarding situations of arrest, detention and release of a refugee
There is another aspect of non-refoulement that pertains to international zones. This concept of transit areas that are outside Indian territory and are marked as being outside of Indian courts’ jurisdiction is considered a major risk factor for refugees.
This legal fiction is in violation of the principles of non-refoulement. It is also contrary to the principles of international law. A refugee from Palestine was deported from New Delhi to Nepal on October 31, 2018. He was sent back to the transit lounge of an airport. He was again sent back to New Delhi’s international airport after being held in an area referred to as the International Zone. This is a classic case of detaining a refugee without providing him with legal remedies.
The Indian Constitution clearly states that the rules of natural justice apply equally to all citizens and aliens. The principle of rule of law is also applicable to all persons, including refugees. Rule of law is the fundamental right of every person in India. No person shall be denied his life, liberty, or property, without the authority of law.
The Indian Constitution does not provide for the state to enforce or implement international treaties and agreements. As per the joint reading of all the provisions, treaties and agreements can only be incorporated as part of the domestic law in the country if they are incorporated in the land law.The Supreme Court has held that international law must be transformed into municipal law before it can be applied to domestic matters. This procedure is referred to as the transformation process. Courts may only apply international law if there is no conflict between domestic and international law. If international law is not applicable to a particular country, then its provisions should not be considered in violation of the spirit of the country’s national legislation.
What is the situation in Myanmar?
The UNHCR on March 31st, 2021, called on neighboring countries to protect the people who fled Myanmar due to the ongoing violence. The statement was made in response to the growing number of people leaving the country due to the military’s actions. Since the military coup, the country has been witnessing an increase in violent attacks on peaceful protesters and the arrest of many individuals.
Aside from this, the military-controlled government also made various amendments to the country’s legal provisions. India was quick to react to the situation in Myanmar. Over 700 persons have crossed into India from there due to the deteriorating political situation in the country, especially the State of Mizoram which shares a border with Myanmar.
A standard operating procedure was then put in place by the Mizoram government to facilitate the movement of refugees and other migrants from Myanmar. The Union home ministry then issued instructions to the states to prevent the influx of persons from the country. The states were also told that they did not have the authority to declare people as refugees since India is not a signatory to 1951 Refugees Convention.
The state of Mizoram expressed its concerns over the government’s decision on not to accept refugees especially since the Chin communities share ethnic ties with the people of his state. The chief minister of the state also argued that the people of his state could not ignore the humanitarian situation in the region.
The main reason why Mizoram wants to not deport Chins not only because of their ethnic ties with them that traces back to Indo-Myanmar frontier of Chin hills but also due to the non-refoulement principle and that it would be unjustified under the international law. The non-refoulement principle prohibits a state from deporting an individual to a place where they might face danger or persecution.
India is also a signatory of the United Nations Convention against Torture, which provides for the protection of persons from torture or other forms of cruel and unusual punishment (Article 3). The right to be free from torture and other cruel, inhuman and degrading treatment or punishment is also included in the International Covenant on Civil Rights (Article 7).
While international law clearly states that non-refoulement is not subject to any limitation, Indian courts have often interpreted non-refoulement as being very much part of the Indian Constitution. Over the years, many refugees from Myanmar have found refuge in India. Many of them are registered with the UNHCR. In 1988, India started accepting asylum seekers from Burma during the pro-democracy movement mainly in the states of Mizoram and Manipur.
It does make one wonder why India took a strict stance when it comes to welcoming refugees from Myanmar. Since the country is going through another humanitarian crisis, the need for protection is more than ever. One of the reasons could be that India does not have a refugee policy, that it does not have a law that specifically addresses the issue. Also, the country does not have a visa procedure for foreigners.
Many of the work in litigation and advocacy on the rights of refugees has been around creating exceptions to the laws that apply when it comes to detaining and arresting refugees and the involvement of advocacy when it comes to the matter of protection of their basic human rights under the Indian Constitution. Despite the progress that has been made in addressing the refugee crisis, the safety and security of people in the country remain precarious. This is because of the lack of clear policies and laws.
What is the Rohingya situation?
At the center of this issue are the individuals from the Muslim community known as the Rohingya, who have been regarded as the most persecuted minority group and were subjected to numerous atrocities in Myanmar.
In 2020, the International Court of Justice (ICJ) ordered Myanmar to prevent acts against the Muslim Rohingyas, which were carried out in response to the country’s military operations against the minority communities. In 2017, the number of people who fled Myanmar for various reasons was considered the biggest wave of displacement in the country’s recent history. It included the Muslim community’s exodus from the country’s Rakhine state. The Government of India started deporting them after it issued an advisory to identify and monitor the illegal immigrants from the region known as the Rohingyas by the Ministry of Home Affairs. The order was challenged in the Supreme Court and was condemned by various human rights groups outside and in India. Since the matter is still pending, the detention of the Rohingyas has continued.
Over the past month, reports have been emerging about the arrest of hundreds of Rohingya individuals in various parts of the country. Most of them were apprehended in Jammu where over 160 of them never returned back to the camps.
Several people have been arrested in Delhi even though the office of the UN refugee agency is located in the capital. The Supreme Court in April[vi] ordered that the people who were arrested in Jammu should not be deported unless they follow the procedures for their deportation. Over the years, there have been various attempts by human rights groups and the UNHCR to seek the release of refugees in detention.
However, there have been some conflicting decisions from the courts. The events that have occurred over the past month have shown the need for more stability and predictability in the country’s policies when it comes to protecting the rights of persons who fear persecution.
What are the International Commitments?
Although India does not have a specific law to deal with refugees, its statutes do not have a separate law to deal with them, all existing laws related to refugee matters, including the Indian Penal Code, The Criminal Procedure Code, and The Evidence Act, are applicable to the refugees as well. Even though India is not a member of the 1951 Convention on refugees, it is still a signatory to various International Human Rights Instruments.
India’s obligation in relation to refugee matters arises out of its membership of the United Nations Executive Committee (EXCOM). The EXCOM is the UN’s agency responsible for the material assistance program of the refugee agency, UNHCR. Its membership shows particular interest in refugee matters. India ratified the Universal Declaration of Human rights in 1948. In 1967, India voted to adopt the UN Declaration of the Territorial Asylum. It also ratified the various international treaties related to civil and political rights.
In 1989, India ratified the United Nations Convention on the rights of the child. In 1974, it also ratified the Convention on the elimination of all forms of discrimination against women. India has accepted the principle of non-refoulement as laid down by the Bangkok Principles in 1966. These principles also contain provisions related to the rights of asylum seekers and the repatriation of refugees.
This section provides a list of the rights that refugees have under the various international conventions related to refugee issues. These include the right to remain in India and participate in the country’s political life.
The Universal Declaration of Human rights guarantees various rights, such as freedom of movement and asylum. The International Criminal Court also has a section dealing with the deportation of aliens.
The Universal Declaration of the Rights of the Child states that the State must protect the rights of every child within its jurisdiction. It also states that the primary consideration in all decisions concerning the child is the child’s best interest.
Despite its own security concerns, India continues to take a humanitarian approach to the issue of refugees. Despite the country’s failure to enact a special law to govern refugees, it has not proved to have a serious handicap in dealing with the enormous refugee problems. Through the various instruments and procedures, the country has evolved a balanced approach to the implementation of the United Nations and International Conventions on Human Rights.
This concept has evolved the idea that the country has a practical balance between its humanitarian and security interests. It is in the interest of both the security and law enforcers to maintain a balance between their various responsibilities. It is very important that the refugee issue is considered when a separate law is enacted. It is important that officials do not ignore the human aspect of the refugee situation, especially the displaced persons.
[i] Gurunathan and others Vs Government of India and others, WP No’s. 6708 and 7916 of 1992.
[ii] A.C. Mohd. Siddique Vs Government of India and others, 1998(47)DRJ(DB)p.74.
[iii] Pending before the National Human Rights Commission of India, 13 August 1997.
[iv] Syed Ata Mohammadi Vs State, Criminal writ petition no.7504/1994 at the Bombay High Court
[v] State of Arunachal Pradesh Vs Khudiram Chakma, 1994 Supp. (1) SCC 615.
[vi] Nizamuddin Ahmad Siddiqui & Abu Zar Ali available at: “Supreme Court order allowing deportation of Rohingyas shows that India hasn’t shed Partition baggage”