Open Access Research Article
‘ILLEGAL MIGRANT’ OR ‘REFUGEE’? ASYLUM SANS LEGISLATIVE FRAMEWORK
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Article Details
‘ILLEGAL MIGRANT’
OR ‘REFUGEE’? ASYLUM
SANS LEGISLATIVE FRAMEWORK
AUTHORED
BY - PRIYANKA BISWAS
“We can't
deter people fleeing for their lives. They will
come. The choice we have is how well we manage their arrival, and how humanely.”
(Antonio Guterres)
Abstract
This paper aims to explore the discourse on Asylum Seekers
and their Status Verification process in the Indian context. It looks into the
technical challenges of status verification operating in a legislative void.
The paper uses the example of the Tibetan and Rohingya people residing in
India, hereafter referred to as the communities, to study how gaps in
legislation and policy impacts the lives of asylum seekers. It aims to
investigate the similarities and dissimilarities of their lived experience as
asylum seekers in exile and adapting to life in a different cultural setting.
In the absence of a central legislative framework for Refugee Status
Determination (RSD) with only Supreme Court judgments pronounced under Article
21 of the Constitution, protecting life and personal liberty of all Persons
irrespective of them being Citizens or not, as the guiding principle renders
the communities doubly vulnerable to persecution. Due to diplomatic maneuvers
protecting domestic interests in the international fora and geopolitics of the
region, administrations over the years have used these terms interchangeably
which in turn leads to more confusion. The paper seeks to clarify the
differences amongst vulnerable communities i.e., Refugees, Stateless People, Internally Displaced Persons(IDP), Asylum
Seekers; how the above-mentioned communities are different from ‘Illegal Migrants’; how the current
definition of ‘Illegal Migrant’ in
The Foreigners Act, 1946 is obsolete; how the existing customary international
law i.e., the principle of Non-Refoulement
is toothless due to its non-binding nature and exists only in fine print on
official UN documents, used only as ‘guidelines’ by countries as and when it
suits their interests.
Keywords: Asylum seekers,
Refugee, Statelessness, Internally Displaced Persons, Refugee Status Verification, Non-Refoulment, Voluntary Repatriation (VOLREP).
1.
Introduction:
There is a plethora
of reasons for one to leave their country
of origin, nationality, or citizenship but it is a known fact that no
individual or group of people ever
decide to leave their home unless their very survival is at stake. Reasons for leaving one’s homeland could
be in fear of persecution based on their
race, ethnicity, sex, religion, nationality, being member of a particular political group as defined in the 1951 UN Convention on the Status of Refugees[1].
However, there
are quite a few instances which can render a person to seek refuge in another country, which are not included in the definition such as:
i.
climate included refugees
ii.
lack of employment
iii.
internal conflicts which aggravate to such proportions
that IDPs are forced to leave the country.
iv.
ethnic cleansing
v.
civil war
The first step to protecting the rights of refugees is to provide
them Recognition; the author
cannot stress enough on the importance of this step. If a government does not have a systemic process to verify the
credentials of persons seeking asylum
in its country, then such persons will go unprocessed and remain as ‘Illegal Migrants’ and will have no
rights to claim protection as ‘Refugees’.
Presently, the administration does not conduct Refugee Status
Verification, and neither
is the nature of entry
of asylum seekers
registered by officials. Due to this discrepancy, when people fleeing persecution arrive in India,
they directly approach UNHCR, India office as it is the
only official channel for seeking recognition.
Unlike the developed nations of global north where RSD is done individually, including India prefers
to bestow recognition on an entire community.
2. International Conventions:
Every
Refugee at one point is an Asylum Seeker but all Asylum Seekers are not
Refugees. Asylum-seeker must be processed at once after reaching the
destination country to ascertain their rights as refugees. The major difference
between an asylum seeker and a refugee is the degree of danger to one’s life,
which in case of the latter is very serious i.e., danger to life due to
persecution on grounds of Race, Sex, Religion, Ethnicity, Political
affiliations, belonging to a particular social group. In case of Asylum-seekers
the level of threat is relatively low and the causes of seeking asylum are
varied; Political asylum- seekers, for example Edward Snowden, who is charged
with espionage for which he is to be prosecuted under the law of the land,
sought safe-haven in Moscow and has been living in Russia ever since.
Similarly, economic offenders who are prosecuted in their country also seek
asylum in foreign countries, where the acts committed are not a crime and which
does not have an extradition treaty with their country where the offense is
committed.
A
person seeking political
asylum is different from a refugee.
These terms are often misinterpreted, especially in instances when there exists
no central policy
and thus a gap in technical awareness. The UN Convention relating to the Status
of Refugees, 1951 was drafted in the aftermath of the two world wars which saw unprecedented bloodshed and
damage to life and property. The definition
of a ‘Refugee’ provided in the 1951 Convention has been widely critisised by India and other South Asian
countries for having a Euro-centric approach,
catering only to the displaced Jewish population of the Holocaust. However, this was rectified in the 1967
Protocol to include displaced people fleeing
from persecution from all parts of the world. As per the definition provided in Article 1. of the 1951 Convention, the term ‘Refugee’ has been defined
as:
For the purposes of the present
Convention, the term “refugee” shall apply to any person who:
(1)
Has been considered a refugee under the Arrangements of 12 May 1926 and
30 June 1928 or under the Conventions of 28
October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization; Decisions of non-eligibility taken by the International Refugee Organization
during the period of its activities
shall not prevent the status
of refugee being accorded to
persons who fulfil the conditions of paragraph 2 of this section;
(2)
As a result
of events occurring before 1 January 1951 and
owing to well-founded fear of being persecuted
for reasons of race, religion,
nationality, membership of a particular social
group or political
opinion, is outside
the country of his nationality and is unable or, owing to
such fear, is unwilling
to avail himself of the
protection of that country; or who, not having a nationality and being outside
thecountry of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term
“the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the
country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the
protection of one of the countries of which he is
a national.[2]
In more
recent times, the UN General Assembly has adopted the Global Compact on
Refugees[3] to
better tackle the global refugee crisis. It aims to mobilise the international
community, create pressure on the global north to help host countries to
accommodate and provide basic facilities to the refugees. The objectives of GCR
include:
1.
“Ease the pressures on host countries;
2.
Enhance refugee
self-reliance by providing them skill training;
3.
Expand access
to third-country solutions;
This is one
of the first steps under the Comprehensive Refugee Response Framework (CRRF),
which was proposed in the New York Declaration for Refugees and Migrants, 2016;
its agenda is to help refugees access their rights, have a better life in the
country they move to and help them decide what to do next. In simple terms, an
asylum seeker is a person whose request for sanctuary is under consideration.
As per the definition provided by the UNHCR glossary, “An asylum-seeker is an individual who is seeking international
protection. In countries with individualized procedures, an asylum-seeker is
someone whose claim has not yet been finally decided on by the country in which
he or she has submitted it. Not every asylum seeker will ultimately be
recognized as a refugee, but every refugee is initially anasylum-seeker.”[5]
The New
York Declaration introduced a unique solution to deal with the refugee crisis: The Comprehensive Refugee Response Framework (CRRF) aims to help refugees to “get their
rights”, “have a better life in the countries
they move to” and “decide
what to do next”. The objectives of CRRF are:
i.
Ease the pressures on host
countries and communities;
ii. Enhance refugee self-reliance;
iii.
Expand third-country solutions; and
It aims to
make assimilation into a new community seamless. This transition is supposed to happen with the help of
signatory countries who are supposed to
firstly, give them refugee recognition and once recognised provide them identity documents, most importantly birth
certificates to children born in India, provide
them with access to basic amenities such as food, water, shelter, healthcare, sanitation, education for
children. It beseeches signatory parties not to seclude
refugee communities in camps or settlements on the outskirts of towns but to
assimilate them with mainstream population so that they feel welcome.
India being
a signatory to the New York Declaration is
bound to respect its obligations under international law. However, on the very onset, India fails on the very first and most important
duty of a signatory nation
i.e., implementing a status verification mechanism for Refugees.
Due to theabsence of an asylum policy, there is no set procedure for
granting recognition to refugees, which increases
the confusion on how to deal with persons seeking asylum in India. Ministry of External Affairs
combs through individual applications on a case-
to-case basis.
5.
LEGAL STATUS
OF TIBETAN REFUGEES
RESIDING IN INDIA:
of the
founding members of United Nations, signatory
to the “six core humanitarian
covenants” namely,
a. Universal Declaration
of Human Rights
b. International Covenant on Civil
Political Rights
c. International Covenant on Economic, Social and Cultural Rights
d. Convention on
the Elimination of all forms
of Discrimination Against Women
e. Convention on the Rights
of the ChildInternational Covenant on
the Elimination of All forms of Racial Discrimination
India is
yet to sign and ratify the 1951 Convention on Refugee Status or the 1967
Protocol. Due to its non-signatory status, India being a sovereign state is under
no obligation to recognise or provide refuge to asylum seekers. However,
customary international law makes it mandatory for even non-signatory countries
to adhere to international obligations.
In case of
the first wave Tibetan refugees who arrived with His Holiness in 1959, researcher uses the term ‘refugee’ here as they were officially accorded refugee
status by the government of India[7]; the second wave of Tibetans arrived in the late 80s when the
government in Beijing took a comparatively lenient stance on the Tibetan cause. Granted the community asylum,
recognising the Tibetan people as refugees and not forcefully deporting
them back to their homeland,
the Indian government has thus fulfilled
its obligation under customary international law’s principle of Non-Refoulement.
As stated
by P.R. Chari in his book Missing
Boundaries: Refugees, Migrants, Stateless
and Internally Displaced Persons in
South Asia[8],
the lack of a specific law to regulate refugee
influx, granting them recognition, documentation, has led to a lot of “ad-
hocism” which is not conducive to bring
uniformity to the way refugees are dealt with and leads to every individual
case to be treated differently.[9]
Thus, in the absence of a central legislation, Tibetans can be persecuted under the existing
foreigners act which
makes the presence of UNHCR becomes all the more important to ensure the rights
of asylum seekers are not abused.
India,
along with majority of South Asian nations, is not a signatory to the 1951 Refugee Convention. Post partition
the newly independent nation was grappling
with a massive influx of refugees, both on its eastern and western front; it was crucial for the government to vet individual cases as it did not have the financial resources to host
such a large group of people. Therefore, the law of the country
defines who is an ‘Alien’, who is a ‘Foreigner’, who is an ‘Illegal Migrant’ i.e., grounds on which an individual is barred from gaining Citizenship; but it does not talk about the rights of people who do not seek
Citizenship, rather asylum.
Thus, in the
context of the refugee protection, the Tibetans are the most well to do refugee community in India. The
Tibetans who arrived in 1959 and after did not seek status verification from UNHCR, India and hence the latter do not have any documentations
on the community residing in India. They are the only refugee community in the world who have been
successful in running a government-in-exile. As per
legal provisions with regard to documentation, the community must apply for Registration Certificate (R.C.) i.e., stay permit and Identity Certificate
(I.C.) i.e., travel document at the office of Foreigner Registration Office (FRO). For easier access
registration certificate can be applied for and updated online. Registration certificate in simple terms is a
document of stay permit in India
under the category of ‘Foreigners’
and NOT ‘Refugees’; they need to apply for Long Term Visas (LTV)
in order to continue their stay in India.
All Tibetans who are born in India between 1959 to 1987, prior to the Citizenship
(Amendment) Act, 1987 are eligible to apply for Indian Passport. In 2016, as per a directive issued by the
MHA, every Tibetan child must be registered
as ‘Foreigner’. Previously, once a child attained the age of sixteen, they had to get themselves registered at the local Foreigners Regional Registration Office (FRRO).[10]
6.
LEGAL STATUS
OF ROHINGYAS
RESIDING IN INDIA:
The legal
status of Rohingyas in India is yet to be determined as they are not processed on arrival. The only documentation they have is the refugee
identity card provided
by UNHCR after a thorough
scrutiny. As per Ministry of Home Affairs, all Rohingya people
have been tagged
as ‘Illegal Migrants’, who have entered
India ‘illegally’ without
any valid travel documents. As per government directives all Rohingyas living in India without documents should
be determined and deported at the earliest.
As India is
not a signatory to the UN Refugee Convention, 1951 or the 1967 Protocol on refugees,
without any domestic
refugee policy, it is well within its right to deport ‘foreigners’, who in
this case also fall under the category of ‘illegal migrants’. Even though India in bound by obligations under “Peremptory Norms of International Law”,
in this particular instance, the government
has deported seven Rohingya men in October 2018 and a family of five in January 2019 terming it as voluntary
repatriation; clearly the present administration is in violation of the customary
principle of Non-Refoulment.
7.
CONCLUSION
In this
chapter the author has thematically analysed the data collected on the two
communities and examine the patterns that emerge out of it. The reason for
studying the Tibetan and Rohingya people is their unique lived experiences as
displaced communities which is vastly different from each other; it covers two
ends of the spectrum, be it on grounds of ethnicity, language, cultural
dimension, traditions, customs. The unifying experience for both the
communities has been being persecuted on grounds of their ethnicity and race.
Both the communities have faced state sponsored pogroms to annihilate their
race and religion. United Nations is yet to recognise the Tibetan and Rohingya
exodus is a result of ‘Genocide’. UN is yet to frame a working definition of
the term ‘Ethnic Cleansing’ which was coined after the civil war in Bosnia.
During the International Criminal Tribunal for the former Yugoslavia (ICTY)
trials an interim report S/25274 defined ‘ethnic cleansing’:
"… rendering an area ethnically homogeneous by
using force or intimidation to remove
persons of given groups from the area."
The same commission in its
final report S/1994/674 has defined
ethnic cleansing as,
“… a purposeful policy designed by one ethnic or
religious group to remove by violent
and terror-inspiring means the civilian
population of another
ethnic or religious
group from certain
geographic areas.”[11]
5.1.
DOCUMENTATION ISSUES OF REFUGEES:
In context
of documentation, which happens to be the most important facet of providing
refugees protection, the Tibetans are faring far better than the Rohingyas. The
Tibetans are the only community which has been recognised as ‘refugees’ by the
Indian government. This courtesy has not been extended to the Rohingyas. The
Rohingyas have been explicitly termed as ‘illegal migrants’ by the Ministry of
Home Affairs. The attitude of the present government in hosting refugees has
long deviated from the age of Nehruvian foreign policy, when even though India
was not financially sound to host a large influx of displaced people, the
government was gracious enough to provide them asylum. Somewhere over time we
have lost the capacity to empathise with the less fortunate.
Through the
analysis of data collected from the field
and by referring to secondary data,
it has emerged that there is a stark difference between the opinions of Ministry of External Affair
and the Ministry of Home Affairs, wherein
the former claims that Tibetans born between 1959 to 1987 are eligible
to apply for Indian passport,
which means they are Indian
citizens but the latter still insists on treating all
Tibetans as ‘Foreigners’. The researcher has
attached the MEA office memorandum which grants passport facilities to both Tibetan parents and children who
were born in India between 1959 and 1987
and whose children are Indian citizens by birth. Post Delhi high court judgment in the cases of Tashi v. UOI[12]
and Tenzin Tsomo v. UOI[13]
wherein the court held that children born to Tibetan refugees born on or after 1987 and before 2003 are Indian citizens by birth.
Comparing
this data with that on the Rohingyas, they are faring far worse. They have no documentation,
save the refugee identity card provided to them by UNHCR after conducting RSD.
The Indian government has not processed the legal status of the Rohingya
people. MHA’s office is of the opinion that the Rohingyas are “illegally
entering India without any travel documents”, therefore, it is the government’s
legal prerogative to deport them back to Myanmar. MHA took a rigid stance after
Myanmar’s State Counsellor, Aung San Suu Kyi’s November 2016 statements, which
led to all Rohingya people entering India to be termed as “Illegal Migrants”.
In 2017 when MHA issued a circular directing all states to identity and deport
all illegal migrants living in India.
The
Rohingyas do not have any valid travel document as they are not recognised as
citizens of Myanmar; this matter of procedural discrepancy is of no value to
the Indian government. Due to lack of a stay permit, similar to that of the
Tibetans, the Rohingyas are completely left to their own means. They depend
heavily on the help given by UNHCR, India and Technical Assistance to
Non-Governmental Organisations (TANGO), a sister organisation of UNHCR, India.
5.2.
EDUCATION:
Similarly, in
the sphere of education the Tibetan community is way ahead of the Rohingyas. As per the data mentioned
in
the previous chapter, the Tibetans are one of the most educated refugee
communities in the world; His Holiness himself being a learned
man has always stressed on the importance of education,
how education will help the Tibetan community to better serve its people and finally bring a solution to the
long-drawn conflict in the Tibetan plateau. To this purpose
once the government-in- exile was set up in Dharamshala, they constituted a Department of Education,
which is one of the seven
main departments of the Central Tibetan Administration (CTA). The Department of Education established the Central Tibetan Schools
Administration which is an autonomous body working under the aegis
of the Ministry of Human Resource
Development, which currently has twenty-eight operating schools, eighteen Tibetan
Children’s Villages, three
Tibetan Homes Foundation schools, Sambhota Tibetan
Schools Society which has twelve schools,
and twelve schools
under the Snow Lion Foundation.[14]
According to
the data collected, promising students do receive scholarships from the Department of Education, which has helped many a student to complete their higher education in reputed colleges from both India and abroad.
The sample group size from the Self-Help Centre, Darjeeling is of second-generation Tibetans who were born
in India right after the 1959
exodus; their rate of education
is lower than the third generation i.e., incomplete
primary education, but all their
children are educated having finished schooling
at Central Tibetan
Schools, private and public schools.
The Rohingyas, on the other hand, are not on equal footing with the
Tibetans on education. The
grown-ups are mostly uneducated and the children who were previously enrolled in schools back in Myanmar are finding
it difficult to cope up in class as the language
of instruction is different. Even in the midst of grave despair
there are instances of hope and for the education of Rohingya children,
Tasmida Johar is a beacon
of hope; out of 40,000
Rohingya refugees currently residing in India, she happens to be
the very first girl to have completed
her higher secondary education.
Tasmida was took interest in political science back in school, finally
making up her mind to study law in college.
Unfortunately, the family could not afford the yearly fee of Jamila Milia Islamia which is a whooping 2.45
lakh, an exorbitant amount for a refugee
family.[15]
Thankfully, UNHCR along with its sister NGOs such as BOSCO, Zakat foundation, Development and Justice Initiative
(DAJI) work to provide access to health,
education, livelihood, documentation to the community; promising students are given scholarships by UNHCR. Tasmida’s brother too has completed his higher secondary education and is
currently pursuing B.A. political
science from Delhi University. The Johar family is faring better than majority Rohingya
families as their father was a businessman by profession, thus having the
resources to sustain the family, first in Bangladesh and now in India, since 2005.[16]
With rampant fires in the Rohingya settlements children tend to lose
their books, uniforms and most importantly their will to go back to school,
especially when parents are of the opinion that there is no point
getting an education as their children
will never geta decent jobs that help them to assimilate with the local population.
With that said the Rohingya children are bright and eager to learn.
5.3.
LIVELIHOOD:
On the
scale of livelihood, the Tibetan are way ahead that the Rohingyas, reasons
being they have access to education, scholarship by the CTA, parents’
willingness to send their children to school and secondly, the Tibetans have
all important documents like Aadhar, ration, PAN, voter id. The first- and
second-generation Tibetan refugees relied on their self-vocation of traditional
arts and crafts such as knitting, spinning yarn, carpet weaving, wood carvings
and likewise. The third generation is mostly working in both public and private
sectors, academia, policy reform organisations and few exceptional individuals
have also been placed within CTA in different departments. This makes
application for jobs, running businesses much easier for the Tibetans. They are
working in the public and private sector, academia, NGOs. Many finish their
higher education and get absorbed by CTA in various departments.
The
Rohingyas are barely managing two square meals, living in settlements and not government sponsored camps,
working mostly in the unskilled sector as ragpickers, construction labours in cement factories. The only documentation they have is the refugee identity card by UNHCR,
also known the ‘Blue Paper’;
being declared as ‘illegal migrant’
has negated all opportunities to earn a decent livelihood.
5.4.
SOCIO-POLITICAL RIGHTS:
The Tibetans
got the right to vote in 2014 but refrain from doing so. They are the only refugee
community, recognised by the Indian government, who have the right to
vote. The reason for not voting is they do not want to lose their Tibetan nationality. They chose to remain
‘foreigners’ even though they are eligible
to apply for Indian passport. Those Tibetans born
after 1987 and before 2003 are Indian citizens by birth; this
opened up a whole gamut of socio- political rights and freedoms for the Tibetans. In
case of infringement of their fundamental
rights, they can move to court and file a writ petition under articles. 32 and 226, they have the
freedom to move freely from one part of the country to another,
they have the write to practice and profession of their
choice, they have freedom to free speech and expression, unless they are not protesting for a free Tibet and speaking
out against the atrocities of Beijing. Rest apart,
the Tibetans, though
MHA continues to term them as ‘Foreigners’, have lived a life of dignity and peace in India.
In comparison,
the Rohingyas have no rights as they have no documents. The irony is Ministry of Home Affairs is
asking for documents from people who have
been rendered ‘stateless’ since 1982. As they do not have travel documents when they entered India, they
are foreigners first and then illegal migrants.
The Rohingyas are not recognised as ‘Asylum seekers’ who need protection; rather the community is looked upon in distrusts, who have entered
the country illegally
and are affiliated with terrorist organisations just because
they happen to be Muslims. The only recourse the Rohingyas
have is moving to the Supreme Court, beseeching them to
protect the rights guaranteed to even non-citizens:
Article. 21 i.e., right to life and personal liberty to be read with article 51 (c). Unfortunately, the apex
court has taken a very tepid stance on the
Rohingya matter as the deportation case, where the question of law is can india
deport 40,000 Rohingyas back to Myanmar
by violating the principle of non-refoulement, is still pending.
8.
SUGGESTIONS:
It has been
suggested by academia, independent researchers, policy reform organisations
such as PILSARC before and the author reiterates the same that the concerned
authorities must draft a Asylum Status Verification mechanism. Absence of a national policy on asylum increases the
vulnerability of people fleeing
persecution, who are genuinely in need of help and protection. The vulnerable
communities, especially the women and
children are falling through the cracks
of law, their whole lives mired in uncertainty and despair, hoping to someday return to their homes.
6.1.
LEGISLATE A COMPACT ASYLUM-SEEKER POLICY:
As India is
a signatory to the New York Convention, which has adopted the CRRF and GCR, it
is time the government should legislate on a domestic asylum-seeker policy,
with a distinct “Refugee Status Determination”. Without refugee status
determination, asylum-seekers are not processed for refugee recognition, which increases their
vulnerability. Due to lack of an asylum-seeker
policy, both the Tibetan and Rohingyas are falling through the cracks
of procedural discrepancies.
6.2.
AMENDMENT TO THE DEFINITION OF ‘ILLEGAL
MIGRANT’: The researcher proposes
that the term “illegal migrant” as defined under the Foreigners’ Act should be
amended at the soonest to exclude asylum-seekers from its purview. As per the
present definition all foreigners who have entered India without valid travel
documents or those who have overstayed their stay are classified as illegal
migrants. This is very problematic for those individuals who are fleeing
persecution, who obviously will not be carrying their travel documents. In case
of the Rohingyas, who have been stateless since 1982 due to the amendment to
Myanmar’s Citizenship Act, do not get issued any identity or travel document,
thus classifying all 40,000 Rohingyas currently seeking refuge in India being
declared as illegal migrant is illogical.
6.3.
PROVISION FOR LONG TERM VISAS:
Researcher
further suggests that Rohingyas should be provided “Registration Certificate”
similar to the Tibetans, who have been granted Long Term Visas (LTVs) i.e.,
stay document similar to that of Tibetan refugees. Even in the absence of a
refugee policy India is obligated to uphold the principles of Non- Refoulement,
according to which no individuals should be sent back to areas of conflict
where they might be an obvious threat to their lives or face persecution on
grounds of race, political affiliations, sex, ethnicity, social groups. No
Tibetans since 1959 have been forcefully deported but in 2018 seven Rohingya
men, a family of five in 2019 have been deported and handled over to the border
police of Myanmar.
6.4.
LACK OF POLITICAL WILL MUST BE REMEDIED:
The private
member bill moved by Congress M.P. Shashi Tharoor on rights of Asylum- seekers
i.e., Asylum Act, 2015 which was drafted along the lines of the PILSARC Bill
i.e., The Refugees and Asylum Seekers (protection) Bill, 2006, is the most
succinct piece of legislation on refugee rights, which due to lack of political never got to see the
light of day. Being a leading power amongst the SAARC and ASEAN nations, India
should take the lead in adopting a refugee policy
to safeguard and protect the rights of asylum seekers in the region. As India is a signatory to the New York
Declaration and other international legal instruments
like CEDAW[17], CRC[18],
UDHR[19],
ICCPR[20],
India should take a proactive step in the positive direction by legislating and implementing
a asylum seeker policy.
6.5.
INCREASED GOVERNMENT INVOLVEMENT:
The author highly recommends that active government co-operation needs to be extended to the UNHCR and its sister
organizations so that the good work done
by these organisations is recognised and allowed to be continued in a better
organised manner. These
NGOs have been working in a tireless
manner ensuring that the
fundamental rights of the refugees have been protected- the one State
has been turning a blind eye to.
During the COVID-19
lockdown the Rohingya community faced a fate similar to that of the migrant workers who were
bereft of access to food, water, sanitation and healthcare. Delhi
High Court disposed a PIL filed by
Mr. Fazal Abdali at Delhi High Court seeking relief
for Rohingya families living in the resettlement
at Khajuri Khas, Sharm Vihar and Madanpur Khadar.[21]
The judgment directed the petitioner
to approach the nodal officer appointed with
grievances regarding basic amenities. As the contentions made are
generic in nature and not with
regards to a specific individual or family, the Court felt it most appropriate to dispose the matter. Here instead of directing the respective authority i.e., the Revenue Magistrate to ensure that basic amenities are provided
to the community at the soonest, especially with the knowledge that community transmission is a reality and
no longer a speculation in this time of
crisis the Court has chosen to stay neutral and not risk going beyond its ambit into judicial
activism.
6.6.
INCLUDE IHL PRINCIPLES ON REFUGEES INTO INDIA'S LEGAL
FRAMEWORK:
India is not a signatory to the 1951 Convention but is still
bound to follow
the customary principle of
international law. There is a grave necessity to formulate a robust legal framework to bridge the legislative gap. To ensure
protection of the persons
fleeing persecution, which the State is bound to protect as per its international humanitarian obligation, and ensure they have access to
healthcare, education and a means to earn a livelihood it is of vital
importance to issue asylum seekers a valid government documentation. Non-Refoulment is covered under Right to Life and Personal Liberty
under Part III, A.21 of the Constitution of India as per the various judgments
given by the Supreme Court. India can lead the way by setting a standard of Asylum Status Verification in the Indian Ocean Region (IOR) which will strengthen its claim as a leading
power in the subcontinent.
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[7] ROLE OF THEGOVERNMENT OF INDIAIN PROMOTION
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[9] Id.
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[13] W.P.(C) 5298/2018.
[14]
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[15] Trisha & Oindrila Das ,Tents and Textbooks: The Rohingya's Struggle
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[17] UN General Assembly, Declaration on the Elimination of Violence
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[18] UN General Assembly, Convention on the Rights of the Child, REFWORLD,
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[19] UN General Assembly, Universal Declaration of Human Rights, REFWORLD, (December 10, 1948), 217 A (III),
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[20] UN General Assembly, International Covenant on Civil and
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[21] W.P.(C) 3063/2020.
Article Information
‘ILLEGAL MIGRANT’ OR ‘REFUGEE’? ASYLUM SANS LEGISLATIVE FRAMEWORK
Authors: PRIYANKA BISWAS
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/19
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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