This article is written by Sidra Khan, from Amity University, Noida. This article gives a brief on what is the Legality of humanitarian visas for persecuted minorities and these visas are provided by which countries and on what basis.

Introduction

We live in a society which is immensely affected by many wars and conflicts today. There are several countries where the situation has deteriorated dramatically in recent years. War and violence forced millions of people to migrate across frontiers in search of stability. The majority stay in neighbouring countries but the ways to legally reach the countries are very limited for those seeking protection in neighbouring States. Humanitarian visas are one of the tools that the Member States according to Refugee Convention 1951 can use to ensure people in need have legal access to international protection in the State. These visas can be a fast way to address some circumstances, especially when people are in desperate need of treatment or when lengthy asylum processes hinder family reunification. Regrettably, despite the large number of people needing protection, humanitarian visas are currently underused. The lack of a sufficiently specific definition of humanitarian visas, coupled with the lack of clarity about how to process and issue them, means that in recent years only a very small number of them have been granted by States, to those who are issuing it. It can also be very challenging for the applicant to navigate the administrative procedures involved in accessing a humanitarian visa.

What are humanitarian visas

There is an absence of a specific definition of Humanitarian Visas. In simple terms, it can be defined as some countries issue humanitarian visas to fulfil their international duty to protect refugees from persecution. As this determines a refugee as an individual, the Convention on the Status of Refugees is often used as the key criterion for determining whether or not a valid claim for protection exists:

• Who is outside their home country or legitimate place of residence;
• Who is unable or unwilling to return to their country of legal residence due to a legitimate fear of persecution concerning their race, religion, nationality, group membership or political beliefs as defined by the High Commissioner for Refugees of the United Nations;
• Who was not convicted by a reasonable tribunal of a serious offence?

Primarily seeking better economic opportunities, people may fairly cite war, starvation or environmental disasters as their main motive for leaving their country of legal residence, which can make it difficult to obtain humanitarian visas.

Concept of humanitarian visas

Humanitarian visas fall within the category of so-called Protected Entry Procedures which permit a non-national from the platform of diplomatic representations.

• Approaching a potential host country outside its territory with an asylum claim or other form of international protection and;
• To be granted an entry permit, whether preliminary or final, in the event of a positive response to that claim.

There are other PEPs and security services outside the jurisdiction of the Member States that address individual or collective protection needs, such as humanitarian entry, temporary protection, diplomatic asylum, extraterritorial processing of asylum claims, humanitarian evacuation, resettlement and national protection programmes. Humanitarian visas, though, are distinct in so far as:

• The protection of seeker’s individual autonomy has a central role to play:

A third-country national approaches directly the diplomatic representation of a potential host state outside its territory with a humanitarian visa application;

• The eligibility determination procedure may be carried out extraterritorially: 

The diplomatic representative of the possible host Member State will process in-country humanitarian visa applications to determine, inter alia, the need for security (pre-screening) before a third-country national enters the border of that Member State. Thus, humanitarian visas aim to complement other measures to control extraterritorial migration;

• Humanitarian visas are intended to provide safe and legal access to the territory:

The granting of a humanitarian visa is intended to ensure the physical transfer and legal protection (orderly entry) of bonafide third-country national protection seekers, and is, therefore, a legal alternative to irregular migration channels;

• The final determination procedure shall be carried out territorially: 

Once a humanitarian visa has been issued and a third-country national has entered the territory of the State of destination, he/she may apply for asylum or other residence permits (e.g. a humanitarian residence permit). Consequently, the individual asylum procedure or other procedure for a residence permit is carried out within that State’s territory. The humanitarian visa, therefore, complements the CEAS, instead of replacing it.

An important aspect of the Refugee Convention, 1951

The Convention defines a person as being a refugee: Any person because of a well-founded fear of being persecuted on grounds of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, because of such fear, unwilling to take advantage of that country’s protection. 

The 1951 Convention on Refugees is the key legal document which forms the basis for our work. Ratified by 145 States Parties, it defines the term ‘refugee’ and outlines the rights of the displaced persons, as well as States’ legal obligations to protect them.

The core principle is non-refoulement, which claims a refugee should not be returned to a country where they face serious threats to their life or liberty. This is now seen as a rule of international customary law.

United Nations High Commissioner for Refugees (UNHCR) serves as a ‘guardian’ of the States are required to comply with us according to the law in ensuring that refugee rights are recognized and secured.

Humanitarian visas in Australia

This visa class is designed to provide protection for persons who are being persecuted or discriminated against in their country of origin and who do not have that country’s protection. They may also be accorded to Australia’s immediate family of permanent refugee or humanitarian visa holders.

A refugee is someone who, for reasons of race, religion, nationality, political opinion or membership within a particular social group, is subject to persecution in his / her home country. Humanitarian category visas may be available to persons who are subject to substantial discrimination resulting in gross human rights violations in their country of origin. In order to be eligible for any of these types of visas, the person typically does not need to have another country’s security.

A person’s visa options will depend in part on whether they apply from inside Australia or outside Australia and advice should be sought. Strict quotas apply to persons applying from outside Australia, and priority is given to the immediate family of permanent refugee or humanitarian visa holders in Australia (parents of minors, spouses and dependent children).

Humanitarian visas in the USA

Humanitarian visas are also known as humanitarian parole and are issued for humanitarian reasons of urgency. People who seek humanitarian parole are those who are otherwise unable to reach the United States but need to do so immediately and for a compelling emergency. Humanitarian parole is not equivalent to permanent immigration status and is rarely granted for more than a year.

Requirements for the Visa 

Anyone is eligible to apply; this includes the potential parolee, a sponsoring relative, an attorney or other interested persons or organizations. Humanitarian parole is not a means to prevent the issuance of regular visas or immigration procedures. All cases must involve urgent humanitarian reasons, or involve a significant public benefit.

Process for Visa 

A humanitarian parole application kit must include the original form I-131 for the Travel Document Application; the original form I-134 for the Assistance Affidavit; the filing fee; comprehensive descriptions of the justification for the request for parole; how long the parole is needed; and why a visa can not be obtained in any other way. Additionally, ensuring that copies of previously approved immigrant petitions and other supporting documents, such as tax returns and letters from doctors, are included is important. Please note, the request will not be processed until all relevant documents have been received.

Medical Parole

If there are medical reasons for using humanitarian parole, a doctor’s explanation must be submitted. This explanation must include the diagnosis, the prognosis, the reasons why treatment in the home or neighbouring country is not possible and how long the treatment will last. Provides details about how the parolee plans to pay for the care, treatment expenses and how the parolee can afford to return to their home country.

Visa Results

Decisions are made on humanitarian parole applications within 90 to 120 days, but particularly urgent cases can be decided within a matter of days. If the request is accepted, a note will be sent in writing but there is no opportunity to appeal if the request is rejected. When there is additional information applicable to the request in the case, a new request must be re-submitted following the usual application for parole.

Humanitarian visas in EU

Articles 19 and Article 25 of the Visa Code provide for the possibility of issuing Limited Territorial Validity (LTV) humanitarian visas, which may be valid in one or more of the Schengen States but not all of them. While Article 19(4) provides for derogations from the requirements for the admissibility of visa applications, Article 25(1) provides for derogations from the fulfilment of Schengen visa requirements. The Visa Code does not allow for a separate system for lodging and processing an application for a humanitarian LTV visa.

Therefore, potential protection needs and human rights issues are examined in ‘ordinary’ visa applications, with explicit refusals of Schengen visas without prejudice to Article 25(1). However, it is unclear if there is a compulsory review of security needs and human rights concerns under Articles 19(4) and 25(1) where the standards for admissibility and the conditions for entry are not met. It is also unclear if LTV visas are refused will there be a right of appeal.

Article 25(1) of the visa code requires the Member States, for humanitarian reasons, national or international reasons, to issue Schengen LTV visas. At the same time, it is possible, pursuant to Article 19(4) of the Visa Code, to derogate from the admissibility requirements for visa applications for humanitarian reasons or for reasons of national interest. Given the apparent incoherence between the language of the clauses, Articles 19(4) and 25(1) explicitly interplay.

The Visa Code does not, however, automatically attach derogation from conditions of admissibility to the issuance of an LTV visa on humanitarian grounds, inter alia. However if a Member State agrees that the humanitarian situation is serious enough to warrant derogation from conditions for admissibility, it seems appropriate that a Member State should find a humanitarian situation to be sufficiently serious to grant an LTV visa. Essentially, in non-admissibility cases, the Visa Code does not establish a right of appeal.

In the case of X and X vs. Belgian State, On 7 March 2017 the Court of Justice of the EU ruled that, for humanitarian reasons, Member States are not required to accept citizens. It was brought before the Belgian Embassy in Beirut, Lebanon, on behalf of four Syrian families who had applied for a humanitarian visa.

The Court was asked if EU Member States were obliged to issue visas for humanitarian reasons under the EU Visa Code and under which circumstances. Unfortunately, in spite of Advocate General Paolo Mengozzi ‘s recommendations, the Court left Member States with responsibility for the award of humanitarian visas, which could actually serve to lessen the use of these visas as a safe and legal means of accessing EU protection.

Indian scenario

India is not a signatory party to the Refugee Convention 1951. So, being not a member of this convention India is not under an obligation to issue humanitarian visas or comply with the rules of Convention. But India has signed and ratified multiple international treaties under which India is obliged to follow it and to give protection to refugees. 

For example, the International Covenant on Civil and Political Rights 1966 prohibits the expulsion of resident aliens without due process, the 1948 Universal Declaration of Human Rights grants the right to seek and enjoy asylum from persecution and the 1989 Convention on the Rights of the Child recognizes the right of asylum of children. 

In addition, India has consistently expressed its commitment to refugees at international fora as a member of the UNHCR Executive Committee. Most recently, on 10 July 2017, India urged countries to refrain from redefining the Refugee Convention or dilute the principle of non-refoulement at the first thematic discussion on a Global Compact on Refugees.

In the year 2015, on humanitarian grounds, the central government has decided to exempt Bangladeshi and Pakistani nationals belonging to minority communities who entered India on or before 31 December 2014 with respect to their entry and stay in India without proper documents or after the expiry of relevant documents, a statement issued by the Ministry of Home Affairs said.

The decision was taken under the Passport (Entry into India) Act,1920 and the Foreigners Act, 1946 it said.

The government also published two notifications under Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946, in the Official Gazette.

There are claims that many Bangladeshi and Pakistani nationals belonging to minority groups in those countries, such as Hindus, Jains, Sikhs, Christians and Buddhists, have taken refuge in India because of religious persecution or fear of religious persecution.

They have reached India either without valid documents, including passports and other travel documents, or with valid documents, but their validity has expired. 

The central government has been under consideration for the issue of regularizing the entry and stay of these Bangladeshi and Pakistani nationals in India, the statement says. There were no exact figures of these minority refugees from these countries but officials placed the figure of around two lakh Hindu and Sikh refugees living in India from Bangladesh, Pakistan and Afghanistan.

Several measures have been initiated including the issuance of a Long Term Visa (LTV) for these refugees.

Conclusion

It is a time of great wars and conflicts, in particular, the current crisis in Syria, where the situation in recent years has worsened dramatically. War and revolution forced millions to migrate across borders in search of stability. The majority of them live in neighbouring countries, but the way to reach the EU legally is very limited for those seeking protection in Europe. Many people risk their lives with human traffickers across the Mediterranean often tragically.

It can easily be seen that the humanitarian visas are issued by the countries to the people who are in well-founded fear of being persecuted in their country on the basis of their caste, creed, colour or religion. It is also known as humanitarian parole. This principle is followed by the countries who are signatory to the Refugee Convention 1951. They are under the obligation to follow it and to help out refugees fleeing from their country out of fear or not returning to their country until the situation gets better there. 

References

• https://thewire.in/communalism/will-india-extend-protection-worlds-persecuted-ethnic-minority-rohingya
• http://www.europeanpapers.eu/fr/europeanforum/humanitarian-visas-and-eu-law-do-states-have-limits-to-their-discretionary-power
• https://lawhandbook.sa.gov.au/ch24s01s09.php

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