The ongoing case of a Yemeni student who has moved the Delhi High Court against his imminent deportation has put the spotlight on the issue of the precarious state of refugee rights in India. Despite hosting a large number of refugees and asylum seekers – 204,600 in 2011 – the country is neither a signatory to the 1951 United Nations Refugee Convention nor its 1967 Protocol for reasons ranging from security threats to demographic imbalance. Neither does India have a domestic legal framework to extend basic rights to refugees.
The 27-year-old student, who was detained in New Delhi after his visa expired last October, moved the Delhi High Court seeking protection against his deportation, saying that his life will be under threat in Yemen, which is in the grip of a civil war since 2015.
Last Tuesday, the High Court sought the response of the Union Home Ministry on the matter by January 30. At the hearing, the government gave the court an oral assurance that it would not take any action in the case without first informing the court and the petitioner.
The petitioner said that he was in line for deportation despite being granted refugee status by the office of the United Nations High Commissioner for Refugees.
However, lawyers and researchers working in the field of refugee law say that refugee status granted by the UN body is a grey area in the absence of any domestic law or special provisions for refugees in India.
Threat to life
According to the petition, the student is a Sunni Arab and is at risk from Houthi rebels who control large expanses of his home country, as well as from other non-state actors such as Al Qaeda and Islamic State, and even the Yemen government.
The student came to India in 2013 to pursue higher education. He completed a post-graduate degree in commerce in Pune after which he moved to the national capital where he planned to enrol for a PhD at the University of Delhi.
On October 26, 2016, five days before his visa was to expire, he applied for refugee status at the office of the United Nations High Commissioner for Refugees in Delhi. He applied for an extension of his visa two days later.
On November 26, the Foreigner Regional Registration Office in the national capital rejected his visa extension plea, and sent him to a detention centre to await deportation.
Subsequently, officials of the United Nations High Commissioner for Refugees interviewed the student at the detention centre, and granted him refugee status. This was communicated to the Foreigner Regional Registration Office. The refugee rights body also assured the student that it would help him in his efforts to obtain a long-term visa. When that did not help, the student was compelled to file a petition in court.
Right to life
Gunjan Singh, the petitioner’s lawyer, said that two factors supported the student’s bid to be granted a long-term visa in India: One, he was eligible under the Union Ministry of Home Affairs own guidelines on refugees, and two, he had a case under Article 21 of the Constitution, which protects the right to life.
“The home ministry-prescribed guidelines deal with two categories of refugees,” said Singh. “The first who come to India on the ground of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion. And others who come to India for economic opportunities.”
He added: “For the first category of refugees, the guidelines clearly mandate that such persons are eligible for the grant of a long-term visa, and will not be deported without specific clearance of the Home Ministry unless there is a security threat from the concerned person.”
Singh said that the Yemeni student belonged to the first category, and had no criminal record to indicate that his conduct poses a security threat to India.
Singh then referred to the second factor in favour of his client.
“Article 21 of the Indian Constitution extends to non-citizens too,” said the lawyer. “In this case the petitioner faces a significant threat to his life if he is deported to Yemen.”
Shreya Sen, a researcher at the department of South and South-East Asian studies at the University of Calcutta, said that the case of the Yemeni national was complicated, as he had not come to India seeking asylum, but the situation in his country had deteriorated during his stay here.
Principle of non-refoulement
The principle of non-refoulment, which protects a refugee or asylum seeker from being forced to return to places where their lives are likely to be at risk, is a fundamental principle of international refugee law and is one of the major elements of the 1951 United Nations Refugee Convention. The principle is also believed to constitute a rule of customary international law, which refers to international obligations arising from established state practice.
The United Nations Convention against Torture (1984), which India is a signatory to, bans refoulement on grounds of possible torture. But New Delhi has not ratified the treaty yet, which means its provisions are not legally binding.
India could recognise the principle of non-refoulment even if it does not sign or ratify the UN conventions, but this cannot happen till existing domestic laws, like the Foreigners Act, which in the absence of a law for refugees applies to them by default, are amended.
“The status of international law in India in this regard [concerning refugees] is quite ambiguous,” said Sen. “International legal clauses that safeguard the interests and human rights of asylum seekers, including the non-refoulement clause, cannot be enforced in India if these are in conflict with domestic law, in this case the provisions of the Foreigners Act.”
The Foreigners Act is against the principle of non-refoulment as it gives India the right to re-foul foreign nationals as and when it feels the need to do so, she said.
Sen added that though the United Nations High Commissioner for Refugees has been given the mandate of protecting refugees in India, it has no power or authority as such and cannot offer permanent solutions in Indian territory. Refugee cards issued by the United Nations High Commissioner for Refugees can only extend the stay of asylum seekers temporarily, she said.
Case-by-case decisions
A former refugee status determination officer at the United Nations High Commissioner for Refugees, who did not wish to be identified, said that the treatment meted out to refugees differed from case to case.
“The factors that play a major role in this regard include – the Indian government’s relations with the country in question, the scale and nature of the conflict in that country and how seriously it is perceived by the international community,” said the former refugee agency official.
She added that there is a lot of ambiguity in the treatment of refugees even by countries that are signatories to the refugee convention. For instance, Afghan refugees have been having a hard time in many European nations as the conflict in Afghanistan in severe only in certain pockets.
At present, Yemen is a much stronger case, she said.
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