A CRITICAL ANALYSIS ON REFUGEES AND ASYLUM SEEKERS IN INDIA

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INTRODUCTION  

We see people leaving their country and getting settled in some other country, seeking a better standard of living. It can happen on various reasons like persecution on account of minority ethnic groups, social groups, religious groups, civil wars, or other situations where their human rights are violated. People in such cases often tend to force themselves to look for a better place for their living.  Generally, states referred as the ‘host Governments’ give the status of ‘refugee.’ Article 1 of the 1951 refugee convention defines the term ‘Refugee’ as a person who flees away from his own nation country due to the fear of persecution because of their race, religion, nationality or due to having a membership in particular social groups. The law of the domicile governs the personal status of refugees in the country in which they are residing[1].  However, it  depends on the host Government to grant refugee status to such people. Countries that are signatory to the 1951 refugee conventions are obligated to protect refugees in their state and treat them according to the international set standards.  India is not a signatory to this 1951 refugee convention.

 The term ‘Asylum’ in literal sense means providing shelter and active protection to a refugee by the state to which he is seeking it on an application. When it comes to the states which are not a party to the 1951 convention, it is the authority of the state to allow a persecuted alien to enter and remain on its territory under its protection. Therefore, everyone has a right to seek asylum, but there is no corresponding duty for the states to grant asylum[2].

Persons who are falling under the term ‘refugee’ will be provided with asylum. After escaping from conflicts and persecutions which forced them to leave their own countries, they have a right to seek asylum in a territorial state. A territorial state is a state in which the individual is seeking asylum. Article 14 of the Universal Declaration of Human Rights mentions that everyone has a right to seek and enjoy asylum from persecution. This right is in addition to the right to leave one’s own country.  The primary difference between refugees and asylum seekers is that every asylum seeker on an application will seek refugee status. On such acceptance, he will be given refugee status in the host country. Hence, every refugee is an asylum seeker, but every asylum seeker cannot be a refugee. Every state has the liberty to grant asylum to the people of other states, but this freedom can be restricted or regulated through treaties or any international conventions/state legislations. There is no obligation or right on the territorial state/host Government to provide asylum. It is just on humanitarian grounds, the states offer asylum.[3]

Asylum is not provided to the persons who have committed crimes against peace, war crimes, crimes against humanity, or any crime other than political crime in their own country. They are not given the protection and status of refugees and they will be deported to their own country as per the territorial state laws or treaties entered between territorial state and requesting state. Once asylum comes to an end, the process of extradition begins.

If an asylum seeker committed a politically motivated crime before fleeing away, states would provide asylum by ensuring that no human rights are violated.  Political crime is executed with a politically motivated object. For example, if two groups in a country carry aggressive activities against each other to establish their Government by overthrowing the existing Government. A crime committed by any member belonging to such groups with the furtherance of such motivated object is considered a political crime. The fugitive criminals are not surrendered/ extradited to the state where they committed a crime if it is a political character because there can be arbitrary power or unfair trial procedures. In such cases, since it is a political crime, the decision can be one-sided also, i.e., towards the Government. Therefore to protect their human rights, asylum is provided. The exception to this rule is, if a person, murdered head of that foreign Government or any member of his family, should not be considered a political crime and must be extradited.

 WHEN CRIME IS OF A POLITICAL NATURE

In the Re Castioni case, the person fled to Britain after committing a crime in Switzerland. He was involved in mob violence to overthrow the existing Government, and he shot state counsel.  When the matter went before the Queen’s Bench, the question is whether he has committed a political crime or an ordinary crime. It was held that the offense committed is a politically motivated crime. Hence, he will not be extradited, and the territorial state, which is Britain in the present case, will only try the offense or provide asylum.

WHEN CRIME IS OF A NON POLITICAL IN NATURE

In the Dharam Teja case, the offense committed is cash embezzlement. After committing, he flew away to a small island ivory cost, subsequently to England. India Initiated extradition procedures and proved that prima- facie evidence existed. However, on looking into the evidence, Britain’s court extradited him without providing asylum since the crime committed is not a political in nature.[4]

In Re Meunier Case, the fugitive involved in a bomb blast in Paris and escaped to England. When France asked to extradite him, England refused the same. In this case, the courts interpreted that the crime committed was not purely in political intentions and thus need not be considered as a political crime.[5]

MODES OF PROVIDING ASYLUM

Generally, in cases where the refugee committed a political crime and seeking protection in neighbouring states, there are two modes of providing asylum.

  1. Territorial asylum

In this case, asylum is provided within the territory of the territorial state, and it is attributed to the territorial sovereignty of the state. Citizens in Territorial state should give consent for such asylum. A decision to grant him asylum is in no way derogates from the sovereignty of the state. Asylum is granted by the state in the exercise of its sovereignty to persons entitled to invoke article 14 of the united nations declaration of human rights.

 In the resolution of December 14, 1967, the United Nations General assembly recommended that in Practice, when a person requested asylum, his request should not get rejected. If he enters the territory of such a state, he should not be expelled. However, when many people request asylum, it may be rejected based on the national security of its citizens.

 In the Nadeem Shravan case, he killed Gulshan and flew away to the UK. India initiated the extradition process but ultimately failed to prove prima-facie evidence before the UK, a territorial state. Uk hence did not accept to extradite him since the Indian Government was unable to establish prima-facie evidence to prove that the crime in question is non-political. In these cases, he is treated as a refugee and shelter will be given.

  • Diplomatic/extraterritorial asylum –

In this case, asylum is granted by the state outside its state territory, i.e., asylum is provided to refugees within the territory of the state in which the offence was committed. It can be within the offender nation-state. Here, asylum is provided within the embassy of that particular state where the offence was committed. In these cases, asylum is provided by the head of the general embassy. Providing diplomatic asylum involves derogation of the state’s sovereignty, since the state will have no powers to use force against the embassy where the refugee is provided with asylum. Such a derogation is not accepted unless there is a legal basis to it. Therefore providing asylum within the state’s territory in which the offense is committed is not recognized or accepted under international law[6]. Suppose a particular treaty exists between the states or a recognized local custom that granting extraterritorial asylum has become a part of customary law. In that case, it can be granted temporarily.

Specific grounds on which this type of asylum is provided are mentioned in the Havannah convention on asylum, which is concluded in a plurilateral way. However, it did not come into force. They are:-

  • When there is an imminent threat to refugees, then on humanitarian grounds, it is granted.
  • When ICJ allows, then it can be granted.

In the Columbia v Peru case, when the matter is referred to ICJ, the court mentioned that it is necessary to identify whether it is a political crime or an ordinary crime. Columbia succeeded in proving that the crime committed is politically motivated crime, and hence they granted extraterritorial asylum. Peru argued that Columbia is intervening in its sovereign acts as it cannot exercise any force within the Peru embassy. Court held that this kind of asylum is provided only when the individual whoever seeking asylum is in danger from mob violence or in trouble because of political corruption in the local state. On satisfying any of these conditions, till the situation gets controlled temporarily, it is granted. Subsequently, he has to be sent to a territorial state and provide asylum in that state.[7]

SITUATION IN INDIA – The issue of diplomatic asylum is always a controversial matter in public international law. India does not recognize granting diplomatic asylum unless a particular treaty exists between the states for a temporary period. India issued a circular on December 30, 1967, to all foreign diplomatic missions in India, mentioning that it does not recognize such right of granting asylum by the head of the mission in its premises.  The circular mentioned that no application for granting asylum inside the embassy premises should not be accepted because it involves a derogation from the sovereignty of the territorial state since the territorial state is restricted from using force on premises of such missions. This was clarified by an Indian delegate Seyid Muhammad on November 3, 1975, in the sixth committee concerning diplomatic asylum[8].  

PRINCIPLE OF NON REFOULEMENT

1951 convention enumerates that state parties/ contracting states should follow the principle of Non- Refoulment. They should not deport/expel forcefully return the refugees to their original territory against their will if there is a credible threat to their life, liberty, or freedom. India also is on the same lines with international law as to interpreting the principle of Non- Refoulement  as part of article 21 in case Dongh Lian Kham v Union oF India and Ktaer Abbas Habib Al Qutaifi v. Union of India [9]

REFUGEE POLICY IN INDIA

India is not a state party to the 1951 U N Refuge convention or 1967 protocol nor, has a common legislative framework governing refugees[10]. India is home to diverse groups of refugees from Bangladesh, Afghanistan, Myanmar, Somalia, Sudan, and Sri Lanka[11].  India has a fear of international criticism in case of not abiding by the laws. India always believed that there should be no interference in its internal matter. Being a sovereign state, India has the power to make laws and govern itself.  India accepts/adopts only those laws which are not a security threat to its sovereignty. India follows a dualistic approach in adopting any international law. In case of ratifying any international treaty, the state has to adopt those treaty rules into its legislation to put affect to those treaty provisions. India follows an informal refugee regime which is in consistent and similar to related international laws.

The Indian Government, along with the UNHCR assistance, works to resolve the refugee concerns. However, since there is no proper regime, it is opened for the Indian Government to take a call and decide the case despite UNHCR verification. They have freedom of thought, movement, freedom from torture and degrading treatment, and other rights at the discretion of the Indian Government. The refugee convention mentions the right to work, access to education, and access to health services in host countries. The Government can decide any set of refugees as illegal migrants, just like what happened with Rohingya. Despite UNHCR verification, the Indian Government chose to deal with them as trespassers under the Indian Passport Act. The legal status and rights of refugees are governed by the Foreigners Act 1946 and the Registration of foreigners act 1939[12]. All foreigners in India are governed under this act. The Government will have wide powers to detain and deport these irregular migrants without considering humanitarian conditions.

2015 ASYLUM BILL-

A private member bill got introduced in parliament in December 2015 by congress MP Shashi Tharoor to establish a legal framework in India with respect to refugee policies.

SCHEME BY TAMILNADU GOVERNMENT

Chief Minister of Tamil Nadu launched a scheme providing monetary assistance of 4000 rupees each to all 13,553 Sri Lankan Tamil refugee families living outside the refugee camps in view of difficulties arising from the pandemic with an aim to extend cash assistance. The state Government allotted 5.42 crore in all for the benefit of Sri Lankan refugees.[13]

SHELTER TO MYANMAR’S CHIN STATE CM AND OTHER REFUGEES IN MIZORAM

Salai Lian Luai, the chief minister of ‘Chin’ state in Myanmar along with 9,247 people have taken shelter in at least 10 districts of Mizoram. The chief minister was first detained by Myanmar military who later got released and reached ‘Champhai’ a town in Mizoram by crossing international border on June 14.2021. As per a news report, Civil Society organisations and student bodies provided food and shelter to Myanmar nationals while few are given shelter by the locals.[14]

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

UNHCR, which was succeeded by UN relief and rehabilitation, was established in the year 1950 to safeguard refugee’s rights and well-being, protecting and providing humanitarian crisis in many parts of the world.  UN refugee agency works as an international organization to save lives and provide future refugees who have forcibly displaced communities and stateless people. According to UNHCR, it is mandated to provide humanitarian assistance and international protection to such refugees by seeking a permanent solution. 1951 refugee convention is the legal document which governs the working of UNHCR where 1967 protocol removes geographical barriers existing in the 1951 convention and hence applicable universally[15].

In India, UNHCR was established in the year 1981. Its parent organization is The United Nations General Assembly. It is located in Delhi, Chennai, and has few partner organizations across the country. India experienced many refugees since World War 2. Nearly 10 million crossed from East Pakistan to India in 1971. The majority are in west Bengal, Meghalaya, and Assam. In India, UNHCR works with the Indian Government and a few NGOs to support refugees and asylum seekers. Registration of refugees is managed in the Delhi office and a few other NGOs like BOSCO, Social, legal info center, Gandhi National memorial society, Fair trade forum India and save the children.

UNHCR SUPPORT AND ASSISTANCE

  • Children 6 years and above can enroll themselves in Government schools situated close to their residence. UNHCR will assist in improving access for higher education opportunities to the younger generation.[16]
  • In case of any issue in enrolling themselves in secondary or senior education, the individual can approach BOSCO to facilitate enrollment in the National Institute of Open Schooling which offers open and distance education with the help of specially designed self-learning materials.
  • In health and nutrition assistance, refugees can avail benefits from the Government’s public health facilities or primary health centers and hospitals.
  •  Pregnant women, children from 0-6 years for early learning, immunization, and nutrition supplements can approach Anganwadi and enroll themselves.
  • If facing any security issues in India, they can approach the nearest local police station and can also share their concerns with UNHCR by mailing them.
  • All services provided by UNHCR are at free of cost.
  • UNHCR gives special attention and services to people with disabilities, severe medical conditions, children without adult support.
  •  Article 21 of our Indian Constitution applies to refugees as well. The right to life and personal liberty applies to everyone irrespective of whether they are a citizen of India or not.  In Louis De Raedt v Union of India, the court held that the fundamental right to life, liberty, dignity are available for non-citizens of India.

In Malvika Karelkar V. Union of India- Supreme court stayed the deportation and order issued against 21 Burmese refugees from Andaman and allowed them for the refugee status by UNHCR.[17]

  • Articles 5,6,7,8,9,10,11,12,20,22,25,26,27,28,32,226 of our Indian constitution are also available to non citizens of India including refugees.[18]
  • Any complaint on UNHCR and its services, refugees/asylum seekers can write a letter to the chief of mission and drop-in boxes, and for the suggestion, they can drop in blue boxes.

LIVE CASES IN INDIA

DALAI LAMA AND HIS TIBETAN FOLLOWERS AS REFUGEES.- Being oppressed by the repressive policies of china, Dalai Lama and some other followers fled away from Tibet and sought political refugee status in India.  Subsequently, India granted asylum to the Dalai Lama and his followers. China made a huge cry over it and alleged that India was interfering in the internal affairs of China. However, as per the  principles of territorial asylum, asylum is provided within its rights as a sovereign state.  Since Dalai Lama has been living in India, this is one of the political issues that affect relations between India and China.

  • Since thousands of Tibetans followed Dalai Lama to India and availed shelter and medication, the Government of India arranged Transit camps and provided basic assistance to the people.
  • The Government also initiated temporary work programs for the benefit of refugees.
  • Handicraft centers and educational societies were established, special schools were established with funding for Tibetan children.
  • Few Tibetans were appointed for road construction work in the Himalayas.
  • The central relief committee looked after vocational training, health care, and education, which benefited the refugees.
  • Tibetans were treated legally at the discretion of India’s executive branch and the policies made by the Government.
  • Freedom of assembly, freedom of speech was restricted for Tibetan refugees, and they no longer believed in voluntary repatriation.
  • The Ministry of Home Affairs issued the Tibetan Rehabilitation policy in 2014 after negotiating with the Central Tibetan Administration.
  • According to this policy, the Central Tibetan administration has to conduct a survey of Tibetan refugees every five years and report it to central and state Governments.
  • This policy contains guidelines to promote and provide a uniform policy in all states where Tibetans reside so that they can have access to Indian Government schemes and benefits.
  • The policy promises rights and benefits and resolves the disputes face by them.
  • This policy mentions that programs such as national food security and targeted public distribution system are available only to Indian citizens and requested the Government to extend it to refugees.[19]

Refugees from Bangladesh.

The repressive policies and genocide committed by the military regime of General Yahya khan forced millions of refugees to seek political refugees in India. India liberally granted political refugee to these oppressed people, fed them, and set the example of providing hospitality unprecedented in the history. It was in keeping with articles 1 and 3 of the draft declaration on asylum adopted by the human rights commission as referred to earlier. Moreover, it is in consistent with articles 31,32,33 of the Refugee convention of 1951. If India had not granted refugee status to the said applicants, their deportation might have resulted them to return a territory where there was well-founded fear of persecution endangering their lives. Thus the action of India in granting political refugee to millions of Bengali refugees from erstwhile East Pakistan (now Bangladesh) was commendable on moral grounds and in keeping with the norms and principles of international law. India’s action was also in accordance with the universal declaration of human rights, 1948. Article 14(1) of the declaration provides that everyone has the right to seek and enjoy other country’s asylum from persecution[20]. Further, Article 14(2) mentions that this right may not be invoked in the case prosecutions which are genuinely arising from non-political crimes or acts contrary to the purposes and principles of the United Nations[21]. Obviously, in this case, the influx of refugees from Bangladesh, article 14 (2) does not apply. The influx of refugees from Bangladesh was due to political crimes, and the refugees concerned were not guilty of violating the purposes and principles of the United Nations. Instead, the military regime of Pakistan was guilty of violating the purposes and principles of the United Nations[22].

Process of filing Asylum application in India.

  1. Individuals and their family members should approach UNHCR for the registration process, consisting of recording, verifying, and updating information.
  2. Such a registration process will take place in Delhi, Chennai, or its partner organization.
  3. An application form needs to be filled by the individual with the basic details like name, date of birth, education, place of origin, family details, and reasons for leaving the country.
  4. A formal registration interview will take place by the appropriate office by looking into the application form.
  5. In this process, iris scans and fingerprints will be recorded.
  6. For documents like case number of immediate family members who have already registered with UNHCR, passport/nationality document/identity document, marriage or divorce or death certificates, birth certificates of children must be carried to the registration office.
  7. This follows the Refugee Status Determination process by providing an Under Consideration Certificate acknowledging that the individual has applied for asylum.
  8. An interview will be scheduled within 20 months from the registration date, where detailed questions will be asked to the applicant. Depending on the information provided in the interview, refugee status is determined.
  9. The decision with respect to refugee status will be given within 12 months of filing the asylum application. In case of not receiving any decision, the individual can write to indne@unhcr.org.
  10. If the application is accepted, the individual will be granted refugee status and provided with a refugee card that should be renewed from time to time as required.
  11. If the application of refugee is rejected, an individual can appeal within 30days to UNHCR.
  12. Such application shall submit in UNHCR registration centers subsequently Under consideration certificate has to be extended.
  13. Once an application is closed, it cannot be reopened.[23]

CONCLUSION

India is providing asylum and granting refugee status within its sovereign power, and no state will involve, govern on the same. Under International law, when one state is granting asylum, other states should respect it. If a state could not grant asylum, it should bring the matter to the international community and ensure his rights are protected. India has no proper legal framework for governing refugees/asylum seekers nor has defined rights and duties of refugees.  Despite of this lacuna, India provided assistance to several refugees from neighbouring countries. If India is ready to scrap this loophole and put forth a national protection refugee framework, it will subsequently help in delivering effective protection to refugees.


[1] THE REFUGEE CONVENTION, 1951, available at: https://www.unhcr.org/4ca34be29.pdf (visited on June 8,2021).

[2] Asylum, India, available at: https://msakhi.blogspot.com/2009/11/  (visited on June 8, 2021).

[3] George J. Andreopoulos (ed.), Encyclopaedia Britanicca  available at: https://www.britannica.com/topic/asylum (visited on June 8, 2021).

[4] International law & Human Rights by Dr. S.K.KAPOOR

[5] Extradition and Asylum: All you must know about procedures, Rules and differentiation, India, available at: https://blog.ipleaders.in/extradition-asylum/ ( Visited on June 20, 2021) .

[6] Asylum in India- The Legal Framework, India, available at: https://bnblegal.com/article/asylum-in-india-the-legal-framework/ (visited on June 11, 2021).

[7] Dr. S.K.K. KAPOOR, “Asylum”, International Law and Human Rights, pg 370 (7th edition).

[8] Concept of Diplomatic Asylum under International law, available at:  https://researchersclub.wordpress.com/2014/07/12/concept-of-diplomatic-asylum-under-international-law/#_ftn23 (visited on June 9, 2021).

[9] Refoulement, Rohingya and a refugee policy for India, India, available at: https://thewire.in/Government/refoulement-rohingya-and-a-refugee-policy-for-india (Visited on June 21, 2021.)

[10] India’s refugee policy, India, available at:  https://www.indianbarassociation.org/indias-refugee-policy/ ( Visited on June 11,2021).

[11] Asylum policy in India, available at: https://2thepoint.in/asylum-policy-in-india/ (visited on June 11,2021).

[12] Asylum in India- The Legal Framework, India, available at: https://bnblegal.com/article/asylum-in-india-the-legal-framework/ (visited on June 11, 2021).

[13] Editorial, “TN relief to non-camp Tamil refugees” The Times of India, June 20, 2021.

[14]  Editorial “ Myanmar’s Chin CM and other refugees in Mizoram” The Times of India, June 16, 2021.

[15] Seeing beyond the surface of discrimination. Available at: http://wanainstitute.org/ar/blog/creative-commons-seeing-beyond-surface-discrimination (visited on June 11, 2021).

[16] Support & assistance, UNHCR, India, available at: https://help.unhcr.org/india/protection-assistance/(Visited on June 13, 2021).

[17] India is chipping away at its past generosity towards refugees, UK available at: https://rli.blogs.sas.ac.uk/2021/05/06/india-is-chipping-away-at-its-past-generosity-towards-refugees/ (visited on June 21, 2021.)

[18] Human rights of refugees and refugee law in India and other countries, available at: https://legaldesire.com/human-rights-refugees-refugee-laws-india-globally/ (visited on June 13, 2021).

[19] Dalai lama’s asylum in India- a legal issue, India, available at: https://blog.ipleaders.in/dalai-law-asylum-india-legal-issue/ (visited on 14 June, 2021).

[20] Asylum & rights of refugees, available at: https://ijrcenter.org/refugee-law/ (visited on June 16, 2021)

[21] Right to asylum & kinds of asylum, India, available at: https://www.blackgown.in/right-to-asylum-and-kinds-of-asylum/2 (visited on June 18, 2021)

[22] Dr. S.K.K. KAPOOR, “Asylum”, International Law and Human Rights, pg 369  (7th edition) .

[23] Registration and refugee status determination process, India, available at:  https://help.unhcr.org/india/applying-for-asylum-india/ (Visited on June 18, 2021.)

Author: HARIKA SIKHAKOLLI, ICFAI UNIVERSITY HYDERABAD

Editor: Kanishka VaishSenior Editor, LexLife India.

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