Refugees are not illegal migrants

Though India plays host to over 300,000 refugees from neighbouring countries, the country has a completely ad hoc system of refugee determination, deportation and protection

India plays host to approximately 332,300 refugees (World Refugee Survey 2003), and is the second largest refugee-receiving country in South Asia, after Pakistan. India’s multi-ethnic, multi-lingual society has made it an attractive destination for a lot of asylum-seekers. Tamil refugees from Sri Lanka, the Jumma people from Bangladesh, the Chin and other tribal refugees from Myanmar, refugees from Afghanistan, Iran and even Sudan comprise the bulk of India’s refugee population.

But the enormity of the situation is discussed only with regard to the political rhetoric on ‘illegal migrants’ who, the government claims, have become an economic burden on the country and need to be deported. This claim works as a strategy for playing the ethnicity card, to create vote-banks before the elections. At other times, people rejoice when census figures show that the number of ‘illegal migrants’ has actually gone down. How the government deals with the ‘illegal migrants’ and the process of their determination and deportation is seldom questioned. Not by the media, not even by civil society.

As a major player in South Asian politics, and indeed world politics today, issues regarding India’s economic might have become central to its attempts at claming South Asia’s ‘big brother’ status. As a rapidly ‘developing’ nation, free movement of capital in and out of the country is supported by a structured regime of national economic policies that adhere to international trade-law obligations through the WTO, World Bank and IMF and regional trade cooperation treaties through SAARC. However, we know very little about India’s state obligations towards respecting and protecting the human rights of people who are labelled ‘illegal migrants’ or ‘aliens’, arrested as criminals under the Passport Act 1967, the Registration of Foreigners Act 1939 or the Foreigners Act 1946. In spite of the presence of such large numbers of people in the country who have fled persecution in neighbouring countries, India has a completely ad hoc system of refugee determination, deportation and selective protection.

The government officially recognises only Tibetan and Sri Lankan Tamil refugees and provides them state protection. For all other refugee populations -- the Burmese Chin, Chakmas and Rohingyas from Bangladesh, Sudanese and Afghans, etc -- it’s left to the United Nations High Commissioner for Refugees (UNHCR) in New Delhi to administer operations to provide refugee identity certificates to those belonging to communities/nationalities not recognised by the government.

So, people fleeing persecution and ending up in India are left at the mercy of the government’s ad hoc policies and the limited operations of the UNHCR. All this, despite a Supreme Court judgment (NHRC vs State of Arunachal Pradesh) that categorically states that all ‘refugees’ within Indian territory are guaranteed the right to life and personal liberty enshrined under Article 21 of the Constitution.

This judgment, passed in the year 1996, has not yet prompted the Indian government to accede to the 1951 UN Refugees Convention. According to the government, the convention is Eurocentric in nature and does not reflect the special needs of the countries of the Global South. This, however, has not prompted India to take proactive steps towards a national law on refugee protection or to initiate a dialogue to develop a regional refugee protection regime. In fact, the country’s fears of an economic burden created by ‘illegal migrants’, and also the security threat posed by ‘terrorists’ could actually be allayed by the setting up of a national or regional refugee protection regime.

Although the UNHCR has done some commendable work in the country, in the absence of any national law, India’s ad hoc refugee policy curtails a lot of its work. In India, the UNHCR provides only de facto protection to its mandate refugees and relies on the tolerance and goodwill of the Indian government. The government only partially recognises the UNHCR mandate; mandate refugees therefore have no formal recognition and are subject to the same municipal laws as foreigners. This lack of formal status weakens the UNHCR’s role in advocacy and intervention for refugee rights.

This situation is mirrored in other South Asian countries that have not acceded to the 1951 convention or the 1967 protocol, thus undermining the international legal regime for the protection of refugees. Though the Indian government proceeds on the assumption that India has a strong humanitarian tradition of hosting refugees, which was present even before the drafting of the convention, lack of accession or the development of a national or regional refugee legal regime is cause for concern.

Even with its limited capacities, the UNHCR itself flagrantly ignores guidelines for the treatment of refugees while conducting interviews to determine and adjudicate refugee status.

Ravi Nair, director of the Delhi-based South Asia Human Rights Documentation Centre (SAHRDC) observers: “The cardinal problem arises when both the UNHCR and the Government of India (GoI) violate their own standards and principles. While it is possible to bring the GoI under the scrutiny of quasi-judicial bodies like the National Human Rights Commission and the judiciary, there is no such mechanism to scrutinise the UNHCR. Official rules and procedures have become an excuse to raise the veil of secrecy and to resort to arbitrariness at the expense of the refugees.”

Consider an incident that took place in October-November 2003, when Burmese Chin refugees and asylum-seekers staged a protest against the UNHCR for not processing their applications in time and humiliating them during the assessment process. Following the protest, the police arrested around 25 demonstrators. It took more than three weeks for organisations working with refugees in the capital to arrive at a consensus on how to bail the demonstrators out!

This was a point where the UNHCR’s New Delhi office required security protection -- fearing attacks from Burmese Chin refugees it claimed to assist. When the demonstrations turned slightly volatile, the UNHCR actually got them arrested, knowing full well that some of the protestors were asylum-seekers and could now be deported. Those arrested were remanded to custody for over two weeks without any intervention by the UNHCR. The Socio-legal Information Centre (SLIC), one of the UNHCR’s implementing partners responsible for providing legal assistance to refugees, also turned a blind eye to the events. It was only when other civil society organisations took up the issue that the UNHCR responded.

This is just one of the many instances where the UNHCR has violated its own standards.

Given the realities in South Asia, efforts should be geared towards developing comprehensive national laws that uphold the universal principles of international refugee protection, while at the same time taking into account the distinctive traits of the region. This would be a more solution-oriented approach; one that is both pertinent and fair in light of current displacements within the South Asia region.

“If such a national legislation were adopted by South Asian states without acceding to the refugee convention, it would be a rare example of national legislation superseding international obligations,” says Brian Gorlick, a former legal officer with the UNHCR, New Delhi. “The absence of national laws has meant that refugees are dependent on the benevolence of the state rather than on a regime of rights to reconstruct their lives in dignity. A consistent legal framework is vital for the prevention of political ad hocism, which often translates into forcible repatriation for refugees,” adds Nair.

The first attempt at formulating a draft regional law for refugee protection was formulated in 1966, when the African-Asian Legal Consultative Committee, an inter-governmental organisation, adopted the Bangkok Principles on the Status and Treatment of Refugees. These principles have since been kept in cold storage; only the text was finalised at a meeting in New Delhi in 2001.

In November 1997, the Eminent Persons Group (EPG) for South Asia, put together by the UNHCR, approved a model national law at its Dhaka Consultation. This model law is the first step in the process of building a consensus on preventing, managing and solving the problems accompanying refugee flows within South Asia in a comprehensive and humane manner. The purpose of the law is to establish a procedure for granting refugee status to asylum-seekers and those forced to migrate due to a well-founded fear of persecution; to guarantee them fair treatment and to establish the requisite machinery for its implementation. The model law provides a comprehensive definition suiting the needs of the region. Unfortunately it has remained a legal fiction, with states showing no inclination towards incorporating it in their respective national legislations.

Since India is one of the largest receiving countries in South Asia, it should take the initiative in establishing a refugee law regime in the region by first making a national law on refuge protection. This would be an extension of India’s obligations under various international human rights instruments that it has acceded to. Such an initiative would also show that India takes its membership of the UNHCR EXCOM (executive committee) seriously, and wants to strengthen its role there. As Professor B S Chimni, an international law expert and vice-chancellor of the National University of Juridical Sciences, Kolkata, points out: “To remain a member of the EXCOM without either acceding to the 1951 convention or passing a national legislation shows an opportunistic attitude towards UN institutions that does the image of the country little good in the international community.”

Post September 11 and July 7, political realities and trends in immigration policies inevitably lead to the conclusion that refugee rights protection in South Asia can only be made effective if efforts are focused on improving the national legal and judicial practices to supplement the existing conventional international refugee law framework. A regional refugee treaty would be the most effective way of making sure that states remain bound to their obligations. It is also recommended that a treaty-monitoring body be established with powers similar to those of human rights treaty bodies. This body should have the authority to issue general recommendations, view state reports and receive individual complaints from people facing persecution.

The process of developing an ‘asylum law’ regime in South Asia must include governments, NGOs and protection agencies alike because it is important to take a holistic view of this phenomenon. Along with advocating and campaigning for the establishment of a national/regional ‘asylum law’ regime, civil society institutions must urge states that are not signatories to other international human rights law instruments to accede to them and also press those states that have acceded but have not made enabling legislation to do so.

“Governments must be more concerned about the protection of people facing persecution, rather than thinking about how a refugee regime might open the floodgates to illegal immigrants. It is a substantive law that would facilitate states to identify illegal immigrants from refugees,” says Chimni.

A step in this direction would not only be a landmark achievement in the development of asylum jurisprudence in the region, it would also be a major addition to intervention mechanisms for the protection of human rights globally.

InfoChange News & Features, May 2006