Afghan immigrants and India’s refugee policy – Explained, pointwise

Introduction

After the Taliban came to power in Afghanistan, many Afghans, including minorities, are looking for asylum in India. There are already 15,000-18,000 Afghan refugees in India, according to experts. Recently, Afghan immigrants started camping outside the UNHCR office in Delhi, demanding refugee status along with other demands.

Earlier, the ethnic cleansing of Rohingyas in Myanmar has also led to considerable Rohingya Muslims illegally seeking refuge in Bangladesh and also in India. Though the Afghan and Rohingya refugee crises appear disconnected, both are part of a major migration upheaval in the South Asian region. Both these refugee crises questioned India’s refugee policy. 

India’s initiatives to evacuate Afghan nationals

India’s humanitarian missions are guided by the principle of “Vasudhaiva Kutumbakam” (the world is one family). India followed the same principle during the Afghan crisis also.

Firstly, Operation Devi Shakti: India launched this operation to evacuate Indian citizens and foreign nationals from war-torn Afghanistan.  Also under this operation, the evacuation of three of the last six “Saroop” of the Sikh holy book has also been done.

Secondly, Apart from that, India also introduced a new category of fast-track e-visas (e-Emergency X-Misc visa) for all Afghan nationals who seek asylum for entry into the country for a period of six months. But it’s ambiguous what their fate will be after this period lapses.

Thirdly, Further, India is also raising its voice in support of Afghan nationals and their safety in global forums. For instance,

Under India’s Presidency, the UNSC adopted Resolution 2593. The resolution expects the Taliban to adhere to its commitments regarding the safe and orderly departure of Afghans and all foreign nationals from the country.

But several experts were of the view that India could provide more towards the welfare of Afghan nationals. For instance, Rahul Shivshankar was of the view that India needs to implement the Citizenship (Amendment) Act, 2019 to protect the minorities in Afghanistan.

Will CAA provide protection to Afghan immigrants?

Firstly, the Act is yet to be implemented by the government. This is because the rules are not yet notified by the government. Without rules, an Act cannot be implemented.

Secondly, the CAA not only specifies about country and religion, but it also specifies the cut-off date —December 31, 2014. So, It’s applicable to illegal immigrants or refugees who came to India on or before that cut-off date.

Thirdly, the CAA neither defines the word refugee nor applies universally to refugees from all countries.  It offers no guidelines on how to deal with future refugee or immigration issues.

Fourthly, the Act excludes the Muslims of Afghanistan, Bangladesh, and Pakistan. So, the evacuated Muslim immigrants of Afghanistan cannot get citizenship under the Act.

Fifthly, the CAA is not a policy for granting asylum or refugee status. Instead, it’s about fast-tracking and regularising the process of granting citizenship to a group of people who have already been residing in India.

What is India’s refugee policy?

India, like most of its South Asian counterparts, does not have a national or an international refugee policy. Further, India is also not a signatory to the 1951 United Nations Refugee Convention and the 1967 UN refugee Protocol. So, the refugee matters at present are dealt with, on a case-by-case basis. At present, India deals with refugees, based on the following legislation and guidelines.

Firstly, Since India does not have a refugee policy, all refugees are categorised as foreigners under the Foreigners Act of 1946 and the Citizenship Act of 1955.

As per the Citizenship Act of 1955, an illegal immigrant can be of two types:

1. Foreign national enters into India with valid travel documents but stays beyond their validity, or
2. Foreign nationals entered India without any valid travel documents.

Secondly, as per, the Foreigners Act, 1946, the central government has the right to deport any foreign national.

Thirdly, law and order is a State subject and international relations and international borders are under the Union government. This has resulted in, both the Centre and the State government agencies, dealing with the refugee problem in India.

Fourthly, in 2011, the Union government circulated a Standard Operating Procedure to deal with foreign nationals who claim to be refugees.

Fifthly, the Citizenship (Amendment) Act, 2019 aims to provide citizenship to those who are sheltered in India for religious persecution or fear of persecution in their home countries. But the Act only covers the Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh, and Pakistan.

How has India dealt with illegal immigrants in the past?

Refugees from Bangladesh: In 2016, the government said in the Rajya Sabha that, India was home to almost 20 million illegal migrants from Bangladesh itself. The Chakma and Hajong refugees from Bangladesh, currently in Arunachal Pradesh, have also been provided citizenship by the government in September 2017.

Tibetan refugees: In the past, India has provided a safe haven for Tibetan refugees on humanitarian grounds. This has created an impact on India-China relations.

During Sri Lankan Civil War: According to a report of the Ministry of Home Affairs, more than 3 lakh refugees entered India in different phases between 1983 and 2012 due to the ethnic conflict. While 99,469 were repatriated to Sri Lanka till 1995, few left for other countries, India provided refugee status to the rest.

But recently, the government announced that nearly 1 Lakh Sri Lankan Tamil refugees living in the states of Tamil Nadu and Odisha may acquire Indian citizenship by registration or naturalisation after fulfilling the eligibility criteria laid down in the Citizenship Act, 1955.

During the Rohingya Muslims influx: India refused to provide refugee status to them. In March 2021, while opposing a plea seeking for the release of Rohingyas who were being held in Jammu for identification and deportation, the Indian government told the Supreme Court that India cannot become the “international capital of illegal migrants“.

Suggestions to solve the Refugee problem

Firstly, India needs to formulate a comprehensive refugee policy that would provide greater clarity in differentiating between a refugee/illegal migrant. A National Immigration Commission can be appointed to frame a National Migration Policy and a National Refugee Policy for India.

Secondly, the government has to strengthen the Foreigners Act 1946 and also sign bilateral agreements with neighbourhood countries regarding deportation.

Thirdly, the states should follow the MHA guidelines of 2018 to identify illegal immigrants. The MHA recommendations include,

Restrictions of Illegal Migrants in specific locations as per provisions of law.

Capturing their biographic and biometric particulars and cancellation of fake Indian documents.

Initiating legal proceedings including deportation proceedings as per provisions of law.

Fourthly, India also needs to strengthen the border areas as the borders are porous and the neighbourhood countries are facing political vulnerabilities constantly. India can improve border surveillance, exploring the options of border fencing and smart walls, etc.

Conclusion

India is facing the issue of illegal immigrants right since independence. It is high time for India to define a clear-cut refugee policy. This will not only prevent the state governments from taking a different stand from that of the centre. But also deport the illegal immigrants who reside in India.