On the margins: 

On the margins: 

Context:

India has not signed the Refugee Convention and does not have a domestic asylum law.

About refugees:

• Refugees do not have a formal legal identity and are often wrongly perceived to be “illegal immigrants”.
• This status has forced them to the margins and has left them wholly dependent on the parallel economy for their survival.

Impact of demonetization on refugees:

• Its collapse in the aftermath of demonetization had a devastating impact of refugees, especially women, who lost every avenue for their sustenance.
• The lack of documentation to open bank account rendered them without the means to convert their cash into new currency, and virtually wiped out their entire savings
• They struggled even to buy essential provisions or avail medical services.

Illegal immigrants:

• There are thousands of illegal Indian immigrants in Europe and the US today, but the term cannot be legally or morally applied to people fleeing Myanmar’s Rakhine State.
• Crossed international borders without documents, looking for better economic opportunities.
• If there was no military operation in Rakhine, and Rohingya were flooding India, arguably a case could be made out for using the term, applied usually to those who have crossed international borders without documents, looking for better economic opportunities.
• The Rohingya have never had papers as they have been denied citizenship of the country where they lived, they fled to save their lives.

Refugees in India:

• Refugees in India typically have a refugee card; a limited number have temporary visas.
• Refugees who tried opening bank accounts with these documents report that bank refused to recognize these as valid documentation for proof of ID or residence.
• Now, with Aadhaar becoming mandatory to access any financial services, it is not clear whether refugees are eligible to apply for the same.
• Aadhaar act states that anyone residing in India for 6 of the 12 months preceding the date of the application is eligible to obtain the card, many refugees who fulfill this requirement report that they have been turned away by local Aadhaar centers.
• It is almost impossible for refugees to open a bank account. This has forced them to remain at the mercy of local agents and touts, which is contributing to the perpetuation of the parallel economy.

Need for a formal legal identity:

• It is critical for the government to take steps towards integrating such marginalized groups into mainstream.
• It is necessary that the government confer a formal legal identity to refugees and issue uniform documentation to this community.
• With regard to Aadhaar, the first step would be to clarify whether refugees are eligible to apply for the same.
• There have been some concerns that the possession of Aadhaar would allow non-nationals to access schemes meant exclusively for citizens, this can be addressed by issuing a limited version of the Aadhaar card to refugees.
• The government can also explore the possibility of allowing refugees to use other forms of documentation such as their refugees card and visa, to access basic financial services.
• There is need for full financial inclusion.

Does India have a Refugee Law?

• India has no refugee specific law
• The matter falls under the Foreigner Act of 1946, enacted by the Central Legislative Assembly.
• The Foreigner Act makes the undocumented physical presence of a foreigner in India a crime.
• It also empowers the government to detail a foreigner illegally living in the country till that person is deported.
• India is not a signatory to 1951 UN refugee convention, or its 1967 Protocol
• The government decides asylum pleas on ad hoc and case-to-case basis
• Asylum-seekers whose plea is accepted are given long-term visa (LTV) to be renewed annually.  Long-term visa gives them right to work in private sector and access to education and banking

What is this “customary law”?

• The U.N. Convention Relating to the Status of Refugee has the Principle of Non-Refoulement
• The principle of Non-Refoulement is articulated in Article 33 of the 1951 U.N. Refugee convention
• It mandates that no state shall expel or return a refugee to “ to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality or membership to a particular social group or political opinion”
• However, this principle has an exception. There can be exception cases when a refugee is regarded as danger to the security of the country
• The principle of Non-refoulement is regarded as a customary international law. These are international obligations arising from established state practice.

The Legal framework for refugees in India:

• India plays host to thousands of refugees , it has no specific legislation dedicated to refugee protection and rights
• In the absence of specific law addressing refugees , individual refugees are essentially protected only under the Constitution of India.
• The government decides the status of refugees only by political and administrative decisions, rather than according to a codified model of conduct that governs the status of Refugees in India.