A bundle of belongings isn’t the only thing a refugee brings into his new country. Einstein was a refugee. – United Nations High Commission on Refugees
STATUS QUO
The greatest nations are defined by how they treat their weakest inhabitants. Oftentimes, the UN has declared contemporary refugee crises in many parts of the world – including India, its South Asian neighbors and broader region – as the worst humanitarian crisis of the world. By the end of 2019, 79.5 million individuals were forcibly displaced worldwide as a result of persecution, conflict, violence or abuse of human rights[1]. That was an increase of 8.7 million people over the previous year, and the world’s forcibly dispossessed population remained at a record high. This includes:
- 26.0 million refugees in the world—the highest ever seen;
- 45.7 million internally displaced people; and
- 4.2 million asylum-seekers.
One person becomes displaced every 3 seconds – less than the time it takes to read this sentence.
WHO IS AN ASYLUM SEEKER?
While most of us misconstrue asylum seekers to be the same as illegal immigrants, there is quite a lot to distinguish between the two. Illegal immigrants move from one place to another for work or better living conditions without having the legal right to do so, whereas, an asylum seeker is a person who has fled their homeland because of war or other factors affecting them or their family, enters another country, and applies for international protection.
ASYLUM SEEKERS & REFUGEES: A THIN LINE OF DIFFERENCE
An asylum seeker is someone who is seeking international protection but whose claim for refugee status has not yet been determined. Contrarily, a refugee is someone who has been recognized under the 1951 Convention relating to the status of refugees to be a refugee.
HISTORY
It was the 1947 population exchange that witnessed the first wide-reaching influx of refugees. The United Nations’ 1951 Refugee Convention was the only refugee instrument to exist at the time and was designed to accord protection to people displaced in the aftermath of World War II. India under Jawaharlal Nehru refused to sign the 1951 Convention and the 1967 Protocol due to the fear of international criticism and unnecessary interference in what it has always maintained is its “internal matter”. The Convention requires the signatory nation to accord a minimum standard of hospitality and housing towards those it accepts as refugees. Failure to provide the minimum continues to attract a lot of international criticism for host nations even today.
WHO IS EDWARD SNOWDEN AND HOW DOES HE FIT INTO THE CRITERIA OF AN ASYLUM SEEKER?
Edward Snowden is a 31 year old US citizen, who worked for the Central Intelligence Agency (CIA). He was a whistle-blower and leaked classified information which provided a crucial public window into the NSA and its international intelligence partners’ secret mass surveillance programs. These revelations gathered unprecedented attention all around the globe on privacy intrusions and digital security issues. The US government has charged Snowden with theft of government property, and two further charges under the 1917 Espionage Act. Each charge carries a maximum 10-year prison sentence. With the US pursuing his extradition, Snowden is now in Russia, where he was formally granted three years’ residency from 1 August 2014, after a year of temporary asylum in Russia ended on 31st July 2014.
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REFUGEE LAWS & POLICIES IN INDIA- WHERE DO WE STAND?
While it is perplexing to learn that India has no regional, national or international policies to shelter the refugees, it is even more astonishing to see as to why India doesn’t have one. Despite that, India pretends to abide by the principle of non-refoulement. It has adopted an ad hoc administrative policy to accord protection to refugees ever since independence. These include the Passport (Entry of India) Act, 1920; the Passport Act, 1967; the Registration of Foreigners Act, 1939; the Foreigners Act, 1946; and the Foreigners Order, 1948.
This is 2020 and the most unwatched section with their perpetual crisis still stares the country in its face:
Presently, India does not have any laws regulating rights or protection of refugees. A downright humanitarian matter like the ‘refugees’ has been influenced by aspects of national security or relations between countries. In the past five years, three separate private member bills seeking amendments to the citizenship law have been introduced in the Parliament but none of them have seen the light of the day except one.
TABLE 1. RECOGNIZED ASYLUM SEEKERS AND REFUGEES IN INDIA, 2020
| PLACE OF ORIGIN | NUMBERS |
| Tibet | 108,005 |
| Sri Lanka | 95,230 |
| Myanmar | 21,049 |
| Afghanistan | 16,333 |
| Other | 3,477 |
| TOTAL | 244,094 |
Note: Numbers from Tibet and Sri Lanka are for refugees registered and assisted by the government of India; others are for refugee and asylum seekers registered with the United Nations High Commissioner for Refugees (UNHCR).
Source: UNHCR, “India: 31-January 2020,” fact sheet, UNHCR, Geneva, January 2020.
NO LAW FOR ASYLUM SEEKERS IN INDIA & THE CAA DOES NOT FILL THE GAP
The Citizenship Amendment Act, 1955 saw a huge change in its provisions which was duly passed by both the houses of parliament on 11th December, 2019. The Citizenship Act, 1955 which initially refused to provide citizenship to all illegal immigrants has now bud its way, successfully, into determining citizenship based on religious grounds. The refugees facing persecution who came in on or before 31st December, 2014 could now apply for citizenship with 5 years of living in India instead of 12 years, irrespective of documents. However, the law only invites refugees who are Hindus, Buddhists, Sikhs and Christians. It basically shields the non-Muslim non-citizens.
One must ponder as to why certain individuals are deemed to be worthy of our kindness than the others?
This translates, in real life, to a lack of legal status for many refugees, asylum seekers, and would-be humanitarian migrants. Refugee status of some has been recognized by UNHCR, but very rarely, institutionally acknowledged by the Indian government. These people are always living in a legal grey area, as they do not get recognised by individual authorities at schools, health-care facilities, so on and so forth, for their particular needs; leaving their basic necessities at stake. For example, a government school may admit a child who has been deemed a refugee by UNHCR, another may deny admission on the basis that the child is an “illegal” resident. The constant hunt for food, shelter and occupation makes their life difficult at the best of times, the COVID-19 pandemic has exposed the extent of these migrants’ instability and vulnerability. Their ambiguous legal status left many stranded and with no access to medical or government relief efforts. The lockdown further cut off their incomes while very few had savings to rely upon.
COVID-19 REVEALS THE LOOPHOLES
Bearing in mind the vulnerabilities faced by the refugees and asylum seekers, crafting labor reforms becomes a mandate to ensure workers welfare. Occupational security, accommodation and health services, previously has always been a concern on paper, should now be given foremost importance in practice. In light of new norms on COVID -19 guidelines around social distancing they should be given equal importance for early medical intervention. A more holistic approach to include and ensure legal status as residents in the country and not limiting it solely to labor protections is required for the asylum seekers. The COVID-19 pandemic did not create the vulnerabilities of refugees, migrants and international asylum seekers, but rather exposed the challenges they have been long facing. If the government wants to accommodate and safeguard these indigent populations their problems and miseries need to be addressed.
WHAT IS THE WAY FORWARD?
Solidarity with asylum seekers can’t survive on compassion solely. To challenge one’s leaders to make decisions that uphold and safeguard people’s humanity should be our common cause.
Any decision on this sensitive area by the government cannot be isolated from its international responsibility under the Universal Declaration of Human Rights, the Convention on the Rights of the Child (of which India is a signatory) and the Convention in Reduction of Statelessness. Moreover, these international regimes coupled with the guidelines under the Constitution make it necessary for India to draft a bill that lays out a refugee policy safeguarding their interest, which is non-discriminatory and includes everyone who has faced persecution, despite their nationality, religion, gender or place of birth. One must remember, migrants & refugees are not pawns on the chessboard of humanity.
REFERENCE
[1] UNHCR Global Trends 2019: Forced Displacements, retrieved 16:50, July, 2, 2020, from https://www.unhcr.org/globaltrends2019/.
BY NASHEET HAMDULAY| ILS LAW COLLEGE, PUNE