Former Bangladesh Prime Minister Sheikh Hasina will likely remain in India for some time, as her plans to travel to the United Kingdom faced a “technical roadblock,” The Indian Express has learnt. Hasina came to India on Monday (August 5) after violent protests against her government forced her to flee Bangladesh.
Along with her sister, the ex-PM had reportedly planned to seek asylum in the UK, where members of their family live. However, according to the country’s immigration rules, asylum requests can only be processed once a person is in the UK and Hasina does not hold a visa for travelling there, reports The Indian Express.
On the other hand, India has decided to let her stay in the country despite the lack of an official policy on refugees. The question of how refugees should be treated has come up again in the past, most recently and prominently with the entry of Rohingya refugees from Myanmar.
Who is a 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 the 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.
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.
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, with nearly 300,000 people categorised as refugees. This includes the Tibetans, Chakmas from Bangladesh, and refugees from Afghanistan, Sri Lanka, etc. 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.
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 based on religion in offering them Indian citizenship.
Deportation, non-refoulement
In 2021, the Supreme Court appeared to accept the Centre’s contention that the Rohingya people in India were illegal immigrants when it refused to order the release of 300 members of the community, most of whom were in a detention camp in Jammu, and others in Delhi. It said they should be deported according to “all procedures” under the Foreigners Act, 1946.
However, this is a complex process. This is evident from a failed attempt by the Assam government in 2021 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 in 2019. She had no family left in Myanmar, but 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 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 in 2018 that this principle must be guarded against dilution, and also argued against raising the bar for granting 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”.
