In 1951, when the office of the United Nations High Commissioner for Refugees (UNHCR) was established, there were an estimated 1 million refugees under the UN mandate. Today, this figure has increased to 20.7 million. While 68% of these originate from just five countries (Syria, Venezuela, Afghanistan, South Sudan and Myanmar), 86% are hosted by developing countries.

India is home to 2.44 lakh refugees and asylum seekers. Of these, 2,03,235 refugees are from Sri Lanka and Tibet and 40,859 refugees and asylum seekers of other nationalities. There are nearly half a million Nepali immigrants residing in India, according to the International Labour Organization. Also, in 2010, 3.2 million Bangladeshi immigrants in India constituted the single largest "bilateral stock" of international migrants residing in the South.

The Indian government does not maintain any record of refugees and blames it on their clandestine movement. "Since such foreign nationals (refugees/asylum seekers and stateless people) enter into the country without valid travel documents in a surreptitious and clandestine manner, data relating to them is not maintained centrally," read a response given by Minister of State for Home Affairs Naityanand Rai in Lok Sabha on February 9, 2021.

On the occasion of World Refugee Day, let's look at, in this order, who is considered a refugee, what are the laws governing refugees in India and what are the challenges they face in the country.

Who is a Refugee?

According to United Nations, a refugee is someone who is forced to flee their country owing to a well-founded fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion. "The risks to their safety and life were so great that they felt they had no choice but to leave and seek safety outside their country because their own government cannot or will not protect them from those dangers," describes Amnesty International.

However, at times, refugees, undocumented or illegal migrants and asylum seekers are used interchangeably which leads to confusion. They are not same at all.

Asylum seekers too ask for protection from persecution in another country, but they are not yet legally recognized as a refugee and are waiting to receive a decision on their asylum claim. While there's no internationally accepted definition of migrants, Amnesty International defines migrants as "people staying outside their country of origin, who are not asylum seekers or refugees".

Though exodus of refugees is forced owing to conflict or persuasion, the cross border movement of migrants could be a voluntary choice, mainly to improve their lives. Unlike refugees who cannot return home safely, migrants can return home if they wish.

Laws Governing Refugees in India

India is neither a signatory to the 1951 UN Refugee Convention relating to refugee status nor of its 1967 Protocol. As many as 149 countries are party to either or both of the instruments. The cornerstone of the UN Convention of 1951 is non-refoulement, which asserts that a refugee should not be sent to a country where they face serious threats to life. This is now considered a rule of customary international law.

In India, all foreign nationals including refugees, asylum seekers and stateless persons are governed by the provisions contained in the Foreigners Act 1946, the Registration of Foreigners Act, 1939, the Passport Act 1920 and the Citizenship Act 1955.

According to the Passport Act, 1920, it is mandatory for anyone entering India through water, land or air to possess their passport and also prohibits the entry of the person not possessing the document. Imprisonment of up to five years or a fine which may extend up to Rs 50,000 could also be levied from one who trespasses.

Whereas, the Foreigners Act, 1946 states that where the nationality of the person is not evident, the onus of proving whether a person is a foreigner or not will lie upon that very person. The Act gives the power to the Government of India to detain a person until deported back to their country of origin.

Then there is the Citizenship (Amendment) Act, 2019. This Act, which faced massive backlash in across the country, aims to facilitate grant of citizenship to migrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from Afghanistan, Pakistan and Bangladesh who have taken shelter in India due to persecution on grounds of religion or fear of such persecution on or before December 31, 2014.

Also, on December 29, 2011, the Union Ministry of Home Affairs issued guidelines stating that who so ever comes to the country fleeing persecution from their home country will be granted a long-term visa for one year which will be renewed for 5 years later. It also mentioned that if a refugee is not found fit to be granted a long- term visa, the government will consult the UNHCR to get them resettled to a third country and not send them back to their home country.

Around 30,000 people belonging to minority communities like Hindus, Sikhs, Buddhists, Jains and Christians coming from countries like Bangladesh, Pakistan and Afghanistan live in India on long term visa, said the then Minister of State for Home Affairs Kiren Rijiju told the Lok Sabha on January 8, 2019.

But there are several reports on how many refugees in India, including the Rohingyas, are sent back to their home countries after facing detention and without any consultation with the UNHCR.

Challenges Refugees Face in India

In August 2017, after violence broke out on Rohingya settlements in Myanmar's Rakhine state, began the largest exodus. They are one of the largest stateless ethnic groups in the world.

The 1982 Burmese Citizenship Law refused to recognise Rohingyas as one of the country's 135 ethnic minorities rendering them stateless and restricted their rights to job, education, marriage and free movement. So, without any official documents, they do not have any recourse to passports or visas required to avail legal immigration. But India has refused to host Rohingya refugees stating that they are a threat to the country's internal security.

The policies followed in the country to manage refugees has unfolded many such challenges. First, India's ad hoc administrative policy on refugees has created an atmosphere of confusion.

"The dual system has contributed to a lack of awareness and misinformation among legal duty bearers causing high levels of insecurity and precarity for refugee communities," said Jhilik Mukhopadhyay, project co-ordinator, Migration and Asylum Project (MAP), Centre for Refugee Law and Forced Migration Studies.

The UNHCR said the Indian government's approach to refugee issues results in different standards of protection and assistance among different refugee groups. Tibetans and Sri Lankan refugees are protected and assisted by the government ,while the UNHCR is directly involved with groups arriving from other countries (mostly Afghanistan and Myanmar) by dint of India's ad hoc or dual framework for refugees and asylum seekers.

Holders of documentation provided by UNHCR are able to obtain temporary residence permits from the authorities. The UNCHR-issued documents are not recognized by the authorities in India being non signatory of the 1951 Convention and due to rise in the number of refugees and asylum seekers in the country.

Second, in the absence of specialised domestic law for refugees, the government relies on Foreigners Act, 1946 and Registration of Foreigners Act, 1939 to govern the entry, stay and exit of foreigners. "But under this law refugees fall under the category of illegal migrants, given that they do not usually have a valid passport and visa for the duration of stay and these laws do not recognise the special humanitarian treatment that is accorded to refugees," added Mukhopadhyay.

The National Human Rights Commission has submitted reports for the promulgation of a national law or at least making changes to the Foreigners Act, 1946. The most immediate reasons being that the terms 'foreigner' and 'refugees' are used interchangeably. This places refugees along with immigrants and tourists in this broad category of foreigners depriving them of privileges available under the Geneva Convention.

"The lack of a national refugee protection framework is an obstacle to providing effective refugee protection," says the UNHCR about India in its Global Appeal Update 2011.

Third, although UNHCR issues a refugee card through refugee status determination process but this process is time consuming and can take up to 20 months for evaluation

"Within that period of time if someone is caught by the police, they will be arrested, detained and deported without even getting an access to the UNHCR. And if at all the refugee card is issued to the asylum seeker, they are entitled to apply for the long-term visa. Also, if the application for refugee card is rejected, no reason is given to the refugee for such a rejection," Fazal Abdali, National Director for Refugee Rights, Human Rights Law Network.

Fourth, the Citizenship Amendment Act, 2019 provides certain persecuted communities the option of durable and long-term solutions, while not according similar privileges to the other community.

The debate over who is an Indian citizen came up again with the introduction of Citizenship Amendment Act (CAA), which amended the Citizenship Act of 1955. "India has decided to accept minority people from our Muslim majority neighbours but not from Myanmar which has a big number of Muslim Rohingyas. That is a grave injustice towards refugees," said Dr Walter Fernandes, Director, North Eastern Social Research Centre that was involved in projects relating to the National Register of Citizens in Assam.