In this article, Sachin Vats of RGNUL discusses Legal Framework on Illegal Refuge Infiltration.

Illegal Immigration: The Guests of Destiny

Can we ever imagine that the time has come when people are also considered as “illegal”?How can we conclude that a particular person is illegal when we believe in the philosophy of natural law thinkers for welfare of the world?

Does it not totally negates the idea of universal brotherhood which was preached by different eminent thinkers of the world?

These questions become relevant when the world is discussing the refugees or asylum seekers or illegal immigrants. When a person or a group of persons illegally live in a country without the permission of the government, it is known as Illegal Migration. They violate the immigration laws of the destination country and live in the country with an intention to remain in the country. The illegal refuge infiltration has become a major concern for all the countries due to rise in global terrorism and over-exploitation of resources.

According to an International Convention on Status of Refugees in 1951 and the 1967 Protocol, defines refugee as, “…a person 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 that protection of that country; or who, not having a nationality and being outside a country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it.”

Illegal refuge infiltration has become a global problem now. In order to secure the rights of the refugees, the United Nations approved the Convention on 28th July, 1951 and it came into force on 22nd April, 1954. The Protocol of 1967 removed the geographical and temporal curbs. It also set out the rights of asylum seekers. But, the problem of illegal immigrants is major concern for the whole world.

Illegal Migration in India

Countries like India believe in peace, harmony, and global brotherhood, it becomes a natural haven for refugees. India’s geostrategic location and liberal democratic approach acts as a magnet to attract the people of it’s neighbouring countries.

                                        [“Udaar Chartinaam Tu

                                        Vasudaiv Kutumbkam”]

The whole world is our family and we believe in this idea. India is neither the signatory of the 1951 convention nor the 1967 protocol but it is among top 20 countries of the world in terms of hosting refugees from almost 70 nations. But, due to lack of natural resources and security reasons, we must think about the practical aspect of refugees. Refugees or Illegal immigrants from Tibet, Sri Lanka, Myanmar, Pakistan, Bangladesh have got shelter in Indian territory. The infiltration from Tibet, Sri Lanka and Afghanistan had been done in a systematic manner to a great extent but the infiltration from Bangladesh is totally unaccounted due to many political and administrative reasons.

There has not been any recent census to count the number of illegal migrants in India. According to the Census of 2001, there were 3,084,826 people in India who came from Bangladesh. Illegal refuge infiltration has now become a major concern for the Government. It has increased the burden over the Government and security of the nation is at risk.

Infiltration From Bangladesh

India shares boundary with Bangladesh on three frontiers with the states like Tripura, West Bengal, Assam, Meghalaya, Mizoram. The hostile situation in the country forced people to leave their homeland and they shifted to their neighboring country. Illegal refuge infiltration from Bangladesh includes two sets of people, they are refugees and economic migrants. They have settled either in the states along the border of Bangladesh or moved to different parts of India. They are also engaged in different jobs in metropolitan cities like Kolkata, Delhi, etc.

There is great challenge before the Government to deal with the serious concerns like national security and resources. The demographic pattern and the way of life of the people of the northeastern states have been significantly transformed due to illegal refuge infiltration. Some states are also facing the problem of insurgency in different border areas. The Government of both the sides have taken up this issue at diplomatic and political level many times but no concrete decisions have been taken so far. The Government of Bangladesh had neither acknowledged the case of illegal immigration nor taken any decision regarding this issue.

Rohingyas are Illegal Immigrants

The Home Ministry has stated that the Rohingyas are illegal migrants and not refugees because they have not followed the proper procedure. There are around 40,000 Rohingyas Muslims in the country and the Government has stated that they can not be given the status of refugees. It has been stated that the Rohingya Muslims have links with the terrorist organizations and the burden on the natural resources of the country will increase. Actually, no Rohingya has received the asylum status and they have not either applied for it.

The Chairman of the National Human Rights Commission, Justice H.L. Dattu stated that NHRC is helping Rohingyas because they face threat in Myanmar. Rohingyas are also human beings and if their rights have been violated then we must take steps to protect them.

Legal Framework and Policy

India has very liberal policy towards refugees. India is neither a party to the 1951 International Convention on Status of Refugees nor to the 1967 protocol but the refugees are protected under the Constitution of India. There has not been any domestic legislation passed with respect to the entry and status of refugees in India. There is no any word like “refugee” mentioned in Indian Laws. The refugees are considered as “aliens” under Indian laws. The word “alien” has been referred Article 22 of the Constitution of India, Section 83 of the Indian Civil Procedure Code, Section 3(2) of the Citizenship Act, 1955 and in some other statutes.

The Foreigners Act, 1946

The Act deals with the regulations regarding all the foreigners due to absence of any specific law dealing with refugees and illegal immigrants. It governs the stay, entry and exit of the governors. The Section 2A of the Foreigners Act, 1946 defines “Foreigner” as a person who is not a citizen of India. The Act neither distinguishes between refugees and illegal migrants nor does it talks about the protection of refugees on humanitarian grounds. It does differentiate even the people willingly visiting India.

In absence of any specific regulation regarding refugees, they are dealt according to the undefined administrative decisions. The asylum seekers from Tibet and Sri Lanka were given status of the refugee by the administration. The asylum seekers from Afghanistan and Myanmar also knocked the doors of the UNHCR (United Nations High Commissioner for Refugees) in Delhi. But, the Bangladeshi nationals have neither approached to any Government office nor to any administrative institutions. They are illegal immigrants and not refugees.

Illegal Migration Detection by Tribunal (IMDT) Act, 1983

The UPA Government on 15th October, 1983 passed an Ordinance to set up a tribunal in order to determine the person is an illegal migrant or not. The Ordinance was introduced and passed in the Parliament on 12th December, 1983. This Act was applicable only in the state of Assam. In other states, the detection of illegal migrant would be done under the Foreigners Act, 1946. The irony of the Act was that the burden of proving one’s nationality was on the complainant instead of the accused. Unfortunately, there was no member in the Lok Sabha from the Assam’s Brahmaputra Valley, when the Act was passed.

The Constitutional validity of the IMDT Act was continuously challenged since its inception in 1983 before the Court on the ground of unreasonable classification under Article 14. Finally, in the case of Sarbanand Sonowal v. Union of India (2005) 5 SCC 665, the Supreme Court struck down the Illegal Migration Detection by Tribunal (IMDT) Act, 1983 on the ground that it is biggest hurdle and main barrier in the identification and deportation of illegal migrants.

The Hon’ble Supreme Court has stated that the Government’s right to deport or expel foreigners is absolute and unlimited. The Constitution does not consist of any such provision which can challenge the discretion of the Government. The refugees living in India has only UNHCR card as an identity due to absence any domestic law concerned with it. The GOI has allowed refugees to apply for long term visas. That will help refugees to have a proper status in India.

Conclusion

Illegal refuge infiltration is a global problem now. As on January 01, 2014 there are 6.7 million global refugees, 1.2 million asylum seekers, 33.3 million internally displaced people in the world. The developed, as well as the developing nations, are facing with the problem of illegal immigrants. Illegal immigration has been a perennial problem for India since independence. India lacks resources as well as concrete legal framework for their sustenance. The global figure for refugees have crossed the 52 million mark since World War II in 2013. It is a human catastrophe and should be dealt effectively by the global community.

References

• The report of UNHCR.
• Home Ministry websites.
• Documentary on Rajya Sabha TV.
• SCC online.
• The Hindu Newspaper.