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India needs a Refugee and Asylum Law

  • Published
    19th Feb, 2022
Context

Recently, a Private Member’s Bill has been introduced in the Lok Sabha proposing the enactment of a Refugee and Asylum law. 

About

Understanding Refugee, Asylum – Seeker and Migrant:

  • Refugee: Refugees are persons who are outside their country of origin for reasons of feared persecution, conflict, generalized violence, or other circumstances that have seriously disturbed public order and, as a result, require international protection. 
    • The refugee definition can be found in the 1951 Convention and regional refugee instruments, as well as UNHCR’s Statute. 
  • Migrant: While there is no formal legal definition of an international migrant, most experts agree that an international migrant is someone who changes his or her country of usual residence, irrespective of the reason for migration or legal status.
    • Generally, a distinction is made between short-term or temporary migration, covering movements with duration between three and 12 months, and long-term or permanent migration, referring to a change of country of residence for duration of one year or more.
  • Asylum-seeker: An asylum-seeker is a person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who hasn’t yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim.
    • Seeking asylum is a human right.
    • This means everyone should be allowed to enter another country to seek asylum.

Legal Framework in India

  • Article 51 states that the state shall endeavour to foster respect for international law and treaty obligations in the dealings of organized people with one another.
  • As the Citizenship Act 1955, an illegal immigrant can be:
    • Foreign national who enters India on valid travel documents and stays beyond their validity, or
    • Foreign national who enters without valid travel documents.
  • The Foreigners Act, 1946, gives the central government the right to deport a foreign national.
  • India is not a signatory to the 1951 United Nations Convention and 1967 Protocol Relating to the Status of Refugees, and it does not currently have a national law on refugees.
  • While law and order is a State subject under the Indian Constitution, international relations and international borders are under the exclusive purview of the Union government. This has resulted in a variety of agencies, both of the Central as well as the State governments, having to deal with refugee matters connected with law enforcement.
  • In 2011, the Union government circulated to all states and Union Territories a Standard Operating Procedure to deal with foreign nationals who claimed to be refugees.
  • So, in a nutshell, India does not have on its statute book a specific and separate law to govern refugees.

Need for Refugee Law

  • A sustainable refugee policy is a necessary step to intelligently manage population movements and ensure transparency and predictability in our administrative actions.
  • A national refugee management law will be in keeping with India’s leadership role in the region and amongst developing nations. 
  • The legislation will clarify the roles of different agencies — governmental, judicial, UN — involved in refugee protection and lay down the procedures of coordination amongst them. 
  • It would also help avoid friction between the host country and the country of origin. 
  • Other states would recognise the move to grant asylum as a peaceful, humanitarian and legal act, and not an arbitrary political gesture. 
  • It will also provide a platform for dialogue on sharing responsibility and aid the search for durable solutions to the root causes of a refugee problem.
  • Some countries provide initial help to refugees, after which they are expected to fend for themselves. A few countries have treated refugees like charity cases. Finding the right balance between the two is what a national refugee law can help achieve.
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