Explained: On ‘refugees’ and ‘illegal immigrants’, how India’s stance changes with circumstances

Last week, the Supreme Court appeared to accept the Centre’s contention that the Rohingya people in India are illegal immigrants when it refused to order the release of 300 members of the community, most of whom are in a detention camp in Jammu, and others in Delhi. It said they should be deported according to procedures under the Foreigners Act, 1946.

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Illegal immigrant vs refugee

Under the 1951 UN Convention on the Status of Refugees and the subsequent 1967 Protocol, the word refugee pertains to any person who is outside their country of origin and unable or unwilling to return owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Stateless persons may also be refugees in this sense, where country of origin (citizenship) is understood as ‘country of former habitual residence’. ( Oxford Handbook of Refugee and Forced Migration Studies)

The UN has said the flight of the Rohingya following the Myanmar military crackdown in Rakhine state in 2017 had created the world’s biggest refugee crisis. Cox’s Bazaar in Bangladesh is the biggest refugee camp in the world today. Myanmar maintains that the Rohingya, who are predominantly Muslim, are illegal immigrants from Bangladesh.

During a visit to Bangladesh last month, “Prime Minister Narendra Modi expressed appreciation at the generosity of Bangladesh in sheltering and providing humanitarian assistance to the 1.1 million forcibly displaced persons from the Rakhine State of Myanmar”, according to a joint statement. Bangladesh Prime Minister Sheikh Hasina asked India to play a strong role in the “repatriation” of the Rohingya to Myanmar. Modi told her India wants a “return of the refugees in a sustainable manner”, according to a PTI report.

But when it comes to dealing with some 40,000 Rohingya who fled to India, the government’s response has been ambiguous. The government had allowed the UN High Commissioner for Refugees (UNHCR) to carry out verification and provide some of them with identity cards. Some 14,000 Rohingya have been identified as refugees in this way.

In the Supreme Court however, Solicitor General Tushar Mehta referred to them as illegal immigrants. Combined with public and political rhetoric about terrorism and communal slurs, there is a demand that they be “deported” immediately.

India & UN convention

India has welcomed refugees in the past, and on date, nearly 300,000 people here are categorised as refugees. But India is not a signatory to the 1951 UN Convention or the 1967 Protocol. Nor does India have a refugee policy or a refugee law of its own.

This has allowed India to keep its options open on the question of refugees. The government can declare any set of refugees as illegal immigrants — as has happened with Rohingya despite the UNHCR verification — and decide to deal with them as trespassers under the Foreigners Act or the Indian Passport Act.

The closest India has come to a refugee policy in recent years is the Citizenship Amendment Act, 2019, which discriminates between refugees on the basis of religion in offering them Indian citizenship.

Myanmar coup

Since the Myanmar Army seized power on February 1, there has been an influx of people into Mizoram. Many of them are democracy activists belonging to the Chin ethic group, or policemen who said they disobeyed orders to shoot at protesters. They fear the Myanmar Army will kill them if they go back.

In refugee terms, there is no real difference between Rohingya and these new arrivals. Both have fled the Myanmar Army, although in different circumstances. The only difference is that Myanmar accepts one lot as citizens while it rejects Rohingya, who are stateless.

New Delhi’s response to those seeking shelter in Mizoram and Manipur will be keenly watched by the Rohingya.

So far, New Delhi’s confusion about this situation in the Northeast has been evident. It directed security forces to stop more people from crossing over, a decision opposed by the Mizoram government. The Chief Minister has expressed solidarity with those arriving from Myanmar and held a meeting with members of the “democratic government in exile”, blindsiding Delhi again.

In Manipur, a government order asking people not to provide food or shelter to anyone from Myanmar had to be hastily withdrawn after it was widely criticised.

Deportation, non-refoulement

While the Supreme Court has ordered “deportation” of Rohingya “following all procedures” under the Foreigners Act, this is much more complex than it sounds. This is evident from the failed attempt by the Assam government to send back a 14-year-old Rohingya girl, separated from her parents in a Bangladesh refugee camp. The girl was detained while entering Assam at Silchar two years ago. She has no family left in Myanmar, but last week, Assam officials took her to the Moreh border at Manipur to be deported. Myanmar did not accept her.

The bottom line to legal deportation — as opposed to just pushing people back over the border — is that the other country must accept the deportee as its national. Over the last four years, all efforts by Bangladesh to persuade Myanmar to take back the Rohingya at Cox’s Bazaar have been unsuccessful. India managed to send back a handful with much difficulty.

But in terming Rohingya in India as “illegal” (in contrast to calling them refugees in Bangladesh) and pledging to send them back to Myanmar, India is going against the principle of “non-refoulement”, to which it is bound as a signatory to other international treaties such as the International Covenant on Civil and Political Rights. Non-refoulement means no refugee shall be returned in any manner to any country where he or she would be at risk of persecution. India made the case at the UN as recently as 2018 that this principle must be guarded against dilution, and also argued against raising the bar for granting of refugee status, saying this leaves out a lot of people “pushing them into greater vulnerability”.

How India deals with refugees from different countries differently is also evident in the case of Sri Lankan Tamil refugees, many of them in camps in Tamil Nadu. The state government provides them an allowance and allows them to seek jobs, and their children to attend school. After the end of the Sri Lanka civil war in 2009, India has encouraged return through the method of voluntary repatriation — they decide for themselves in consultation with an agency like the UNHCR, if the situation back home is safe. This method adheres to the principle of non-refoulement.

UNHCR says it is its priority “to create an enabling environment for voluntary repatriation… and to mobilize support for returnees.” Which means it requires the “full commitment of the country of origin to help reintegrate its own people”.

Myanmar is right now far from the point where Rohingya or pro-democracy activists would want to voluntarily return home.