Safe haven for some, no refuge for others

Across India, tens of thousands of asylum seekers and refugees from Sri Lanka, Tibet, Myanmar, Afghanistan, Somalia, Syria and other countries reside in government camps and informal settlements. However, the country still lacks an overarching refugee policy.

A few hundred metres from the high-rise neighbourhoods of Haryana’s Faridabad, Saif Ahmad* spends hours sorting through piles of waste as his toddler sons play nearby. Far from what was once his home in Myanmar, this is Saif’s only means of feeding his family.

Some hundred kilometres from here, at a refugee camp beside the Grand Signature bridge in Delhi, Gokul* is concerned that his family’s shelter, made from tarpaulin and wood, will not hold up to the harsh weather outside. Having fled persecution in Pakistan, Gokul now constantly worries about the threat of wild animals from the nearby forest.

Further down south, 11 years after he was born in a government hospital at Sindhanur in Karnataka, Darshan* is still not officially an Indian citizen. This is because his mother has been registered as an ‘unauthorised’ settler from Bangladesh, even though she has lived in the country for over 40 years. She has an Aadhar card and ration card but is not included in the voters’ list. This affects the family’s access to benefits, reservation and land.

The three stories of varying national, religious and linguistic backgrounds have one thing in common. An imminent threat to their safety force these families to uproot their lives and seek asylum in a foreign country — India. 

Fleeing persecution and violence in their home countries, refugees traverse a risky, uncertain path — some by air, others by boat, and still others by long journeys on foot. However, even years later, in the very land in which they sought refuge, their safety, health and futures continue to be at risk.

Lack of access to basic amenities such as shelter, water and electricity threaten their immediate survival. In the long term, difficulties in finding stable employment and education, and accessing healthcare services impede their chances at real integration or rehabilitation. These are only partial glimpses into the complex challenges facing refugee communities in the country. 

Across India, tens of thousands of asylum seekers and refugees from Sri Lanka, Tibet, Myanmar, Afghanistan, Somalia, Syria and other countries reside in government camps and informal settlements.

The number of refugees stands at 2.1 lakh, according to data from the United Nations High Commissioner for Refugees (UNHCR) and the Home Ministry. Experts estimate that the real figures are at least twice this number. 

Historically, India has recognised, hosted and rehabilitated several refugee communities, providing them with shelter, healthcare and basic facilities. 

However, the country still lacks an overarching refugee policy. Unlike 149 member states, India has neither signed the UN Refugee Convention nor its 1967 Protocol, which set out the rights of asylum seekers and refugees, as well as the obligations of the host States. 

At the domestic level, too, there is no singular legislation. “But refugees are guaranteed rights through the precedents set in previous judgements, as well as the application of fundamental rights and international customary law,” says Mohammed Afeef, a lawyer and researcher at Alternative Law Forum.

In addition, India is a signatory to other binding international human rights instruments which recognise the rights of refugees, such as the Universal Declaration of Human Rights.

However, legal experts, civil society and refugees themselves point out high levels of ambiguity in the treatment of different refugee communities.

The Foreigners Act, 1946, the Passport Act, 1967, and several other regulations are generally used as the framework for cases relating to refugees. These laws broadly apply to all non-nationals and do not hold specific protections for asylum seekers and refugees.

According to a March 2023 report by a UN Special Rapporteur titled ‘Situation of human rights in Myanmar’, “These laws are overly reliant on the criminalisation of people in irregular situations, imposing custodial sentences and deportation with few legal or procedural safeguards.”

“Under the Foreigners Act, the burden of proof is on the refugee to produce valid documents. Many of them live in fear, afraid to even go to the hospital or avail health services, for fear of being detained, deported or prosecuted,” says Afeef.

Two-track system

The uncertainty also means refugees are subject to highly differential treatment based on various factors which include mode of arrival, nationality, religious background, financial status and even the state of residence in India. 

The country is home to a peculiar, two-track asylum-seeking system. ‘Mandate’ refugees include asylum seekers from neighbouring countries (excluding Myanmar). They are required to directly approach the Ministry of Home Affairs (MHA). 

‘Non-mandate’ refugees include those from non-neighbouring countries like Afghanistan, as well as those from Myanmar. These asylum seekers are required to approach the UNHCR office in New Delhi for refugee status determination (RSD). 

The Special Rapporteur report notes that access to RSD is a serious concern in India: “UNHCR does not have offices in northeastern India, meaning that Myanmar nationals entering Manipur or Mizoram must travel more than 2,000 kilometres to Delhi without documentation, risking arrest and detention, if they want to register with UNHCR.”

Livelihood, education, health 

As of July 2023, 47,033 refugees are registered with the UNHCR. In theory, approaching the UNHCR allows refugees to get a refugee card, through which they can access education, healthcare, formal employment and housing. 

In practice, however, even once they are recognised as refugees by the UN organisation “most refugees do not get jobs even if they are qualified. Also, most schools do not grant admission to students who do not have Aadhar cards and other official documents, even if they have refugee cards,” says a social worker from a non-profit organisation in New Delhi, which works with Afghan refugee children. 

The lengthy process of financial rebuilding and administrative progress takes a toll on their ambitions and opportunities too.

Combined with the traumatic events that led them to seek asylum, the horrors they witnessed and the upheaval to their lives come at a great cost to health. “Many of the refugees suffer from bone and joint conditions, but surgeries and other treatments are too expensive,” she says. In addition, “mental health is a major problem, many of them suffer from depression.” But mental health support is even more of a limited resource. 

Everyday dangers

The lives of refugees are prone to other imminent threats. Saurav*, a Pakistani Hindu refugee, lives in a camp located in a flood-prone area in New Delhi. “The floods wreaked havoc on our shelter. We were forced to live on the streets for a month,” Saurav says.

The Pakistani Hindu refugee community is perceived as more fortunate, as policy provisions allow them to get long-term visas and obtain Aadhar cards, PAN cards and open bank accounts, unlike some other refugee communities. 

Yet, there are serious gaps in access to support, says Sudhanshu S Singh, founder and CEO of Humanitarian Aid International. “Families lost most of their assets in the recent floods. While a compensation of Rs 10,000 was announced for citizens, this was not extended to the refugees who faced the same devastation too.” 

Rohingya refugees

The contrast between the treatment of different refugee communities is most evident when it comes to the Rohingyas. Since the 1990s, thousands of Rohingya refugees have been seeking asylum in India, escaping severe violence in their home country. A large number of them cross the northeastern border of India. 

Rohingyas face additional barriers in accessing support structures for refugees. In addition, particularly following a 2017 circular from the MHA — which classified them as “illegal immigrants” — the Rohingyas have been subject to detention in centres across India, awaiting deportation. 

Arbitrary detention is a great threat to Rohingya lives, says Sabber Kyaw Min, founder and director of the Rohingya Human Rights Initiative. “Many Rohingya people have been in detention centres for nine to ten years now. They desperately lack medical facilities, food, sanitation, and water supply in these centres. Further, the families are cut off from their communities for years, unaware of what will happen to them,” he says. As of August, 763 Rohingya people are in detention centres across India, according to the collective.

The condition at the centres is grave. Sabber cites the recent widely reported incident of violence at a holding centre in Jammu in July, where tear gas was used by authorities during a clash at the facility. This led to several police and detainees being injured, and the death of a five-month-old infant. The family had been detained at the centre since 2021. The parents and their teenage son were reportedly made to attend the baby’s funeral in handcuffs.

Conflicting approaches

A lack of clarity has become evident in the varying treatment of Rohingya refugees across states. In Mizoram, for instance, nearly 40,000 Myanmar nationals have been taking shelter. Despite the Centre’s instruction to deport them, the state government has provided them refuge. 

“Mizoram cannot turn a blind eye to the humanitarian crisis unfolding in their backyard,’’ said Mizoram CM Zoramthanga said in his letter to PM Narendra Modi in December 2021. The Centre has not yet responded to the CM’s request for financial assistance to support the asylum-seekers.

Mizoram has also provided shelters to nearly 1,000 Chin-Kuki refugees from Bangladesh. 

However, in neighbouring Manipur, there have been repeated and widespread calls from the majority Meiti people to address the threat of “illegal immigrants”. They have called for PM Modi to implement a National Register of Citizens. 

Despite the gaps in policy, in practice, Indian courts generally uphold a central principle of international refugee law, that of ‘non-refoulement’. This guarantees that refugees should not be sent back to a country where they face the threat of “torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm,” according to the Office of the United Nations High Commissioner for Human Rights. 

The Supreme Court halted the deportation of Burmese nationals in Malavika Karlekar v Union of India because their claim for refugee status was pending. 

Yet, in April 2022, an SC bench rejected a plea for the release of Rohingya detainees in a subjail in Jammu, upholding the order for their deportation back to Myanmar. The apex court ruled that since India is not party to the 1951 Refugee Convention, the principle of non-refoulement is not applicable. 

“The system is very schizophrenic,” says a Bengaluru lawyer, who works with Rohingya detainees. “Each category is dealt with in a different way.” 

Sustainable solutions

The UNHCR has previously pointed out that “​​the Government of India’s approach to refugee issues results in different standards of protection and assistance among refugee groups.” 

A domestic asylum framework is key, to consolidate the various policies that apply to refugees in India, and codify their rights. Ratification of the Refugee Convention is also viewed by many as a solution that would help prevent practices contradictory to India’s human rights commitments.

India’s support of the Global Compact on Refugees in 2018, adopted by the UN General Assembly was lauded as a step in a positive direction. “India as a major power and member of the Executive Committee of the UNHCR, may consider becoming a party to the 1951 Convention. There are sufficient provisions in the 1951 Convention that will allow India to protect its legitimate national security interest,” renowned legal scholar B S Chimni wrote in his foreword to The GCR - Indian Perspectives and Experiences. 

Signing on to the Refugee Convention, by itself, is not a comprehensive solution. The civil society community, in particular, points out the need for policies that prioritise integration and rehabilitation. 

As opposed to a universal policy, the focus needs to be on providing basic essentials, says Sudhanshu. “This needs to include land, basic housing, upskilling, schemes for education and small business investment.” 

Further, in addition to government intervention, the scale and complexity of the refugee issue warrants multi-stakeholder collaboration. The Bengaluru lawyer emphasises the need for consultation, particularly among the legal community, as well as with the UNHCR. “It is important to create and have that open space —  to discuss learnings across states and communities, and collaborate in a better way. Otherwise, we end up working in silos,” she says.

(*Names changed to protect privacy)

(With inputs from Sumir Karmakar in Guwahati and Pavan Kumar H in  Sindhanur)