Whether the basis of differentiating between different classes of refugees is explicit (as in the case of the faith-based CAA in India) or implicit (as in the case of the recent race-based Bill in Britain), the principle of non-refoulement is violated at varying levels.
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IN 2020, it was reported that a Syrian man had taught his child, named Salwa, to react to the sound of bombs with laughter. While such coping mechanisms are effective, even if deeply distressing, in the long-run, the lack of mobility, access to clean water and education, among other amenities, shall deprive Salwa of a normal and fulfilling childhood. Ultimately, her family might have to migrate towards Europe or beyond, in the interests of bodily safety and life prospects.
However, the United Kingdom (UK) is unlikely to grant Salwa or her parents asylum if she travels there by boat across the English Channel. This is due to the controversial Illegal Migration Bill 2022–23 which was introduced in the House of Commons on March 7.
Given the controversial nature of the Bill, the UK Parliament's Joint Committee on Human Rights has called for a legislative inquiry into the Bill, calling on the UK Home Secretary to defend the same on several counts. Critics of the Bill have argued that it is in violation of international human rights laws and conventions, and that it undermines the principle of non-refoulement, which the Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention, refers to as an important principle in international refugee law.
Critics of UK's Illegal Migration Bill, 2022–23 have argued that the Bill is in violation of international human rights law and conventions, and that it undermines the principle of non-refoulement.
Taking this Bill as a starting point, I will examine the principle of non-refoulement and explain how it is central to refugee jurisprudence. Subsequently, I will discuss how the Indian State locates itself within the broader discourse on non-refoulement, in order to bring to focus the refugee crisis in India. I will also be viewing the immigration debate through the lens of racism in the UK and religion in India.
The Refugee Convention defines a 'refugee' as one who may possess "…[a] well-founded fear of being persecuted for membership of a particular social group or political opinion, and is unwilling or unable to avail themselves of the protection of the country of habitual residence." Refugees may face persecution in their home State and hence, as asylum-seekers, be 'unwilling' to refer to the protection of their original State. Hence, the de facto or effectively unprotected status of refugees is one of the key factors out of which arises their persecution. Thus, they may take recourse to low-income jobs, be the subject of various forms of discrimination, and be unable to enjoy even a subsistence-quality life.
The current international framework for refugees may be subdivided into two categories:
(a) International refugee law
(b) International human rights law
The primary instrument for refugee protection is the Refugee Convention and its associated Protocol of 1967. There are three important facets that emerge from these two foundational instruments: they define the term, 'refugee', as noted above; incorporate the principle of non-refoulement, and lay down uniform standards in terms of treatment of refugees by State agencies.
The United Nations High Commissioner for Refugees (UNHCR) serves as a guardian of the Refugee Convention and its Protocol. Today, there are 149 signatory States to either or both the Convention and its Protocol, resulting in the establishment of certain common minimum standards.
International human rights law
Apart from specialised instruments, several other treaties are also relevant to this discourse, and include the Universal Declaration on Human Rights, 1948 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In terms of protection of refugees at the time of armed conflict, the international humanitarian law regime applies. The Geneva Convention relative to the Protection of Civilian Persons in Time of War and its associated Protocol of 1977 also address issues pertaining to violation of international human rights standards.
Non-refoulement
The definition of 'refugee' under the Refugee Convention incorporates the meaning of 'non-refoulement'. The underlying principle upon which the structure of 'non-refoulement rests is the norm that there is an obligation upon States to not return non-national asylum-seekers to territories where they may be subject to torture, inhumane treatment, and where their life and freedom may be at risk.
It must be noted here that the regimes of the Refugee Convention as well as the Torture Convention are informed by the principle of non-refoulement. Given the efficacy of this principle in the protection of refugees facing human rights violations, over the years the principle of non-refoulement is seen as having attained the status of a peremptory rule (jus cogens) under international law. Consequently, it has attained universal acceptance and is thus applicable to all States, to some extent.
The Bill seeks to deter small boats of migrants crossing the English Channel to seek asylum and refuge in the UK. According to the UK Parliament's Home Affairs Select Committee, in the first ten months of 2022, 38,000 people had arrived in the UK by small boats. The Bill, the British government claims, will have a deterrence effect on illegal entry into the country, facilitate the removal of people residing in the UK without the legal right to do so, and also reduce the smuggling of people.
“The underlying principle upon which the structure of non-refoulement rests is the norm that there is an obligation upon States to not return non-national asylum-seekers to territories where they may be subject to torture, inhumane treatment, and where their life and freedom may be at risk.
To control its borders, the British government has announced an annual cap on the number of people being allowed entry into the UK under 'safe and legal' asylum routes. It has also stated that it would remove from the UK asylum-seekers who entered the country illegally within 28 days and prevent them from returning or claiming citizenship in the future.
There have been claims that the Bill is racist, given most refugees entering the UK are non-white, and considering post-World War II immigration policies in the UK were designed to prevent black people from entering Britain. It has been noted that the results of the 2016 Brexit referendum were based on adverse attitudes held by the general British public against non-white immigrants, mostly from the Global South, entering the UK through Europe. There was also a rise in hate crimes against people of colour in the months following the Brexit referendum. There has been a 19 percent increase in race-motivated hate crimes in the UK in the period of 2021–22 compared to the previous year, with more than two-thirds of all hate crimes in Britain in that period based on race.
The UNHCR has plainly stated that the Bill "…would be a clear breach of the Refugee Convention and would undermine a longstanding, humanitarian tradition of which the British people are rightly proud." In this statement, the UNHCR has even assailed the Bill on other fronts, noting that no consideration has been made for the individual conditions of migrants, and that it eliminates the right of refugees to seek protection.
As mentioned above, the Joint Committee on Human Rights had called for an inquiry into the Bill and noted some problematic parts of the Bill. Among them, the following are pertinent to our discussion.
Detention and bail
The Bill has certain clauses that might be violative of the UK's obligations under the European Convention on Human Rights (ECHR) as well as prohibition against arbitrary detention under the Refugee Convention.
Settlement, entry and citizenship
Clause 2 of the Bill prohibits any person (and their family members) meeting the four conditions prescribed in the clause from entering or remaining in the UK. Further, children born in the UK whose parents do not meet the conditions specified in Clause 2, would be ineligible to apply for British citizenship.
These two provisions might well be in violation of the ECHR.
Capping the annual number of entrants using safe and legal routes
Clause 53 of the updated Bill creates the obligation upon the Secretary of State to make regulations specifying a cap on asylum seekers. This cap might be in violation of the UK's obligations under the Refugee Convention.
Non-refoulement
Clause 53 is perhaps the most direct violation of non-refoulement because it states that an annual cap on asylum seekers using safe and legal routes must be announced by the Secretary of State. In case the number of asylum seekers exceeds the mandated cap in a given year, the Secretary of State is required to lay a statement before the British Parliament explaining why that cap was breached.
Another contentious refugee policy was announced by Britain last year, known colloquially as the Rwanda asylum plan. As per it, single men who had crossed the Channel to enter the UK on boats or lorries would be relocated to Rwanda.
“As per a 2021 British policy, single men who had crossed the Channel to enter the UK on boats or lorries would be relocated to Rwanda.
This scheme was also assailed for being violative of international refugee law. Particularly, the principle of non-refoulement can be argued to be breached because it provides that States have an obligation to not return non-national asylum-seekers to territories where they may be subject to torture, inhumane treatment, and where their life and freedom may be at risk. The human rights record of the Rwandan administration under its current President Paul Kagame has been questionable, which is at odds with the principle of non-refoulement as per which asylum-seekers should not be sent to territories where their life and freedom might be at risk.
The UK government had itself stated at the United Nations in 2021 that there are continued restrictions on civil and political rights in Rwanda. However, the next year, then British Prime Minister Boris Johnson described Rwanda as one of the safest nations in the world.
According to the UNHCR, more than 46,000 refugees and asylum-seekers reside in India today.
India is not a party to the 1951 Refugee Convention nor its 1967 Protocol, on grounds of security and public order. In any case, Article 253 of the Constitution of India provides that the Parliament can only implement international treaties or conventions by making laws to that effect. However, no law on refugees exists in India at present.
All the same, India has assisted refugees within its territory, by way of State practice and communication with the UNHCR: often, refugees here are categorised as either mandated or non-mandated. Moreover, Articles 14 (equality before the law) and 21 (right to life and liberty) of the Constitution are available to non-citizens as well, and have been utilised by refugee groups in Indian courts for obtaining protections against deportation, expulsion and repatriation without consent.
For instance, in 1999, the Gujarat High Court prevented the deportation of Iraqi refugees certified by UNHCR. In another case in 2021, the Manipur High Court held that non-refoulement is part of the Indian Constitution and granted safe passage to seven Myanmarese persons to Delhi. However, due to the lack of legislation, there is no settled position on refugees, with certain refugees receiving recognition and protection, and others not receiving similar protections. It can be argued, then, that this variance in standards of protection culminates into immigration policies that explicitly make distinctions between migrants based on religion or faith.
Legislative regime
Given the lack of adherence to international obligations regarding refugee protection, refugees and foreigners are treated at par. Thus, the Foreigners Act, 1946, the Foreigners (Tribunal) Order, 1964 and the Passports Act, 1967 are the relevant domestic statutes that form the domestic legal framework pertaining to refugees.
In addition, Section 6A (special provisions as to citizenship of persons covered by the Assam Accord) of the Citizenship Act, 1955 deals with a separate mode of acquisition of citizenship because it takes into account cross-border migration. Based on fulfilment of timelines and conditions, the provision seeks to regularise the citizenship of two categories of persons, namely:
Also read: Assam NRC: Supreme Court to hear constitutional validity of Section 6A of the Citizenship Act
Citizenship (Amendment) Act, 2019
The Citizenship (Amendment) Act, 2019 (CAA) provides that Hindu, Sikh, Buddhist, Jain, Parsi and Christian migrants from Afghanistan, Bangladesh and Pakistan will not come under the category of 'illegal migrants' under the Citizenship Act, and will obtain a fast-track to Indian citizenship.
The CAA has been called patently unconstitutional as it sets up religious identity as a mode of distinction among refugees, which does not meet the standards of Article 14 of the Constitution. It has been vigorously defended by the Union Home Minister Amit Shah in the Indian Parliament on the ground that it simply provides citizenship to a certain class of immigrants and does not serve to take it away from others. Shah has unequivocally stated that the CAA is not anti-Muslim.
However, many legal scholars, former judges and practitioners have criticised the CAA for its unconstitutional anti-Muslim bent. International reportage has also noted the anti-Muslim angle. Thus, a faith-based notion of citizenship has arisen in India due to the CAA and its explicit focus on faith or religion as a criterion of migration.
Right to legal remedies and natural justice
In the case of citizenship determination by Foreigner Tribunals (FT) in Assam, when an FT renders a decision that an accused is a foreigner, then there is a restricted right of appeal available to the Gauhati High Court. In practice, however, the orders of the tribunal tend to be final.
Also, the lack of fair trial guarantees has implied that the FTs have operated with very little accountability to the state or Union governments. There is a marked absence of fair hearing, notice of summons and access to judicial review of FT orders.
Also read: The Gauhati HC's setting aside of numerous Foreigners' Tribunals' decisions points to a systemic rot
In the case of the Bill, for a person who is subject to removal to a third country after being found in the UK illegally, there is no right of appeal available under the Nationality, Immigration and Asylum Act 2002. However, such a person is not barred from forwarding a judicial review against an impugned decision of the Secretary of State.
“The CAA has been called patently unconstitutional as it sets up religious identity as a mode of distinction among refugees, which does not meet the standards of Article 14 of the Constitution.
In practice, this amounts to a restricted appeal because maintaining a judicial review as a legal strategy may not be feasible for most refugees.
Discrimination based on ethnocentric and religious lines
The legal context around citizenship and immigration policies in India has been characterised by the presence of the 'other'— the illegal alien here is largely seen as a Bengali-speaking, Muslim, Bangladeshi infiltrator, laying out an extremely specific imagination of an illegal immigrant and fashioning policies based on that. Hence, an ethnocentric imagination tends to dominate the governance of immigration in India.
The British government has stated that refugees crossing into the UK using legal routes (land routes through Europe) will be welcomed, while those using boats across the Channel (illegal routes) will be restricted from entering the country. However, it has been noted that only certain refugees, for example those from war-torn Ukraine, would be able to use these legal routes while most other refugees (40 percent of those crossing the Channel) fleeing Syria, Iran and Afghanistan would be forced to use illegal routes.
Thus, a distinction is made between two classes of refugees: white European refugees are given work permits and benefits, but these benefits are not extended to non-white refugees from the Middle-East and South Asia. In the UK, therefore, a race-based imagination tends to dominate the way the new Bill has been shaped.
Adding exclusionary criteria around immigration policies is problematic, more so when they become discriminatory in distinguishing one class of refugees from another. Whether the basis of differentiating between different classes of refugees is explicit (faith-based in the case of the CAA in India) or implicit (race-based, in case of the Bill), the principle of non-refoulement is violated at varying levels.
“An ethnocentric imagination tends to dominate the governance of immigration in India. In the UK, on the other hand, a race-based imagination tends to dominate.
In the case of the Bill, the UK has violated the principle of non-refoulement in the policy of annual caps on asylum-seekers and sending refugees to a third country such as Rwanda.
A refugee is a persecuted person who has faced immense hardship and discrimination in their life, leading them to uproot their lives and flee to a different country. When the immigration policies of the host country comprise exclusionary criteria that distinguish refugees based on their group identities, it does little to address the refugee crisis.