In August this year, the Taliban captured Kabul and took over Afghanistan after the U.S. announced a sudden military exit from that country. It resulted in an exodus of Afghan nationals across the world and especially into neighbouring countries, including India. Although the Indian Ministry of Home Affairs took action to manage this influx of ‘refugees’ by means of an emergency visa, it reignited an old debate on the missing Indian refugee policy.
Refugee policies are laws and regulations that reflect a nation’s attitude towards the non-citizens that have arrived in the country to escape persecution in their home country due to their race, religion, nationality, membership of a particular social group or political opinion.[1] Such policies eliminate arbitrary executive actions against refugees. In India, the absence of a concrete refugee policy has created a discretionary system where the Ministry of Home Affairs is the sole authority to decide if a person can be given protection as a refugee in India. There have been sporadic instances where the courts have recognised the principle of non-refoulement, i.e., the obligation on a country to not send back the refugees to their home country, and provided asylum to some refugees,[2] but these judgments do not constitute the law of land.
Effectively, India does not have a refugee policy or refugee law but instead employs ad hoc notifications issued by the Ministry of Home Affairs. For instance, the MHA in 2017, had issued strict guidelines to the North-eastern states asking them to restrict any illegal entry of Rohingya Muslims from the India-Bangladesh/India-Myanmar border.[3] In 2021, India also granted around 200 emergency visas to refugees from Afghanistan seeking asylum in India. This decision was taken by the MHA in light of the Taliban’s victory and subsequent formation of government in Afghanistan. [4] However, no official stance has yet been taken by the MHA on the rest of the Afghan refugees that have arrived in the last couple of months.
In general, India has issued an SOP in 2011, which was amended recently in 2019, to vest the MHA with the power of granting long term visas to refugees having a well-founded fear of persecution.[5]
Sources for International Refugee Law
| Sources | Authoritative body | Contribution to Refugee Law jurisprudence |
| 1933 Convention relating to the International Status of Refugees[6] | League of Nations | It was the first attempted codification of international refugee law. |
| 1948 Universal Declaration of Human Rights[7] | United Nations | Article 14 of the Declaration guaranteed the right to asylum to everyone facing persecution. |
| 1951 Convention relating to the Status of Refugees[8] | UNHCR | It defined the term ‘refugee’ and it established the principle of non-refoulement for protection of refugees |
| 1967 Protocol to the Refugee Convention[9] | UNHCR | Removed the geographical and temporal limitations of the Refugee Convention by extending the definition of refugee to apply to all times and places. |
| 1969 Convention Governing the Specific Aspectsof Refugee Problems in Africa[10] | Organization of African Unity [OAU] | This Convention presents a broader definition to the term refugee so as to cover the regional issues of Africa. |
| Cartagena Declaration on Refugees, 1984[11] | Colloquium on the International Protection of Refugees in Latin America, Mexico and Panama | This regional convention was adopted to extend refugee protection to new contemporary situations. |
| 2001 Directive on Temporary Protection[12] | European Union | Adopted to resolve the Kosovo refugee crisis and establish mechanisms for immediate protection to refugees. |
India’s policy vacuum on refugees is not unusual given the fact that it is not a party or signatory to the UN Refugee Convention. 143 countries of the world are party to the UN’s 1951 Refugee Convention and its Protocol[13] which make it binding on these countries to include the principle of non-refoulement in their domestic legal system. Therefore, refugee laws in these countries cannot legally discriminate in granting asylum to certain refugees and denying it to others on any grounds. However, there is no enforcing body in International Law which can compel states to follow the Refugee Convention, resulting in frequent violations of the Convention’s provisions. Very few nations follow a textbook approach to the Refugee Convention in their domestic law. Germany is a rare example of this, having one of the most liberal refugee regimes in the world. Six years ago, Germany opened its borders to almost half a million refugees that came to Europe from Syria, Iraq, North Africa and Afghanistan, ignoring the protocol of first checking the claims of every refugee as laid down under the Dublin Regulation of the EU.[14] Today, the official figures show that Germany has given shelter to 1.2 million refugees which is the highest for any country in Europe.[15]
On the other end of the refugee protection spectrum is the domestic ‘policy’ of Saudi Arabia which is neither party to the 1951 convention nor does it have a refugee policy of its own. The Kingdom of Saudi Arabia refuses to acknowledge the term ‘refugee’ and instead incarcerates the people seeking shelter in the country without a permit or work visa. However, Saudi Arabia has defended its non-integrative refugee policy by stating that it provided work permits and temporary housing to hundreds of thousands of Syrian refugees[16] and has also donated a large sum to humanitarian organisations working in the field of refugee protection.[17]
The cases of Germany and Saudi Arabia are exceptions as most countries follow a more balanced approach towards providing protection to refugees. By doing this, countries are able to give adequate rights to refugees without compromising on their own national security. For instance, the United States government sets a numerical ceiling for the yearly admission of refugees and has laid down grounds of denial of asylums which include criminal histories, past immigration violations, alleged connections to terrorist groups, or communicable diseases.[18] China is also a party to the Refugee Convention and has in the past, opened its borders for a large number of Vietnamese refugees[19] but it retains the arbitrary power of forcibly repatriating refugees whenever its security concerns are threatened.[20]
Other countries from Asia and Africa which are party to the Refugee Convention also have modelled their refugee legislations on the Convention but added restrictions and limitations which are in the country’s interest. For instance, South Korea makes it mandatory for refugees to have adequate documents before granting them asylum[21] which is contradictory to Article 31(1) of the Refugee Convention.[22] Kenya, on similar lines, vests discretionary powers to the Commissioner of Refugee Affairs to revoke the refugee status of a person on the ground of national security and public order.[23] This goes against the principle of non-refoulement. Thus, strict compliance to international refugee law is a rare sight in domestic policies of most nations.
Like Saudi Arabia, India is not a party to the Refugee Convention. However, trends of the past indicate that the Ministry of Home Affairs has been liberal with granting refugees from Afghanistan, Bangladesh (West Pakistan), China, Myanmar and Sri Lanka.[24] In 2020, the total number of refugees and asylum seekers residing in India stood at 21,001.[25] The only need of the hour is to formalise this process through the means of a policy.
A balanced approach similar to the policies and laws of the U.S., Kenya, South Korea and many other nations can be a reliable model for India’s prospective refugee policy. India can include elements such as a fixed ceiling for annual intake of refugees and pre-set grounds for refusal of asylum and frame a policy which reflects its respect for international law while also protecting its national security interests.
Subodh Singh is Research Intern, Gateway House.
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References:
[1] https://www.unhcr.org/4d934f5f9.pdf (Art. 1)
[2] Nandita Haksar vs State of Manipur and Ors (In this case, the HC held that non-refoulement is included in the right to life under Indian constitution and hence can be availed by all refugees. )
[3] https://www.mha.gov.in/sites/default/files/advisoryonillegalmigrant_10092017_2.pdf
[4] https://www.mha.gov.in/sites/default/files/AfghanEvisa_25082021.pdf
[5] https://www.mha.gov.in/MHA1/Par2017/pdfs/par2020-pdfs/rs-05022020/350.pdf
[6] https://www.icrc.org/en/doc/resources/documents/article/other/57jree.htm
[7] https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf
[8] https://www.unhcr.org/4d934f5f9.pdf
[9] https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolStatusOfRefugees.aspx
[10] https://www.unhcr.org/publications/legal/3d4aba564/refugee-protection-guide-international-refugee-law-handbook-parliamentarians.html
[11] https://www.unhcr.org/about-us/background/45dc19084/cartagena-declaration-refugees-adopted-colloquium-international-protection.html
[12] https://ec.europa.eu/home-affairs/policies/migration-and-asylum/common-european-asylum-system/temporary-protection_en
[13] https://www.unhcr.org/3b66c2aa10
[14] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02013R0604-20130629
[15] https://www.unhcr.org/refugee-statistics-uat/#_ga=2.230449500.138447076.1638615684-1782160258.1638615684
[16] http://gulfmigration.eu/media/pubs/exno/GLMM_EN_2015_11.pdf
[17] https://www.oxfam.org/sites/www.oxfam.org/files/file_attachments/bn-syria-fair-shares-analysis-010216-en.pdf
[18] https://www.state.gov/refugee-admissions/application-and-case-processing/
[19] http://www.unhcr.org/464302994.html
[20] https://www.unhcr.org/47fb4ed42.html
[21] https://elaw.klri.re.kr/eng_service/lawView.do?hseq=43622&lang=ENG#:~:text=A%20refugee%20applicant%20may%20stay,until%20such%20procedures%20are%20complete).
[22] https://www.unhcr.org/4ca34be29.pdf
[23] http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/RefugeeAct_No13of2006.pdf
[24] https://www.unhcr.org/4cd96e919.pdf
[25] https://reporting.unhcr.org/sites/default/files/UNHCR%20India%20factsheet%20-%20January%202020.pdf