Wed08232017

Last updateSat, 22 Jul 2017 6am

You are here: Home | Agenda | Migration & displacement | UNHCR's role in refugee protection in India

UNHCR's role in refugee protection in India

By Ipshita Sengupta

Although India is not a party to the 1951 UN Convention on Refugees, asylum-seekers who are not offered direct protection by the Indian government can get refugee status from the UNHCR in a de facto system of refugee protection in India. But in the recent past, refugees under UNHCR protection have begun losing faith in a system plagued by insensitivity and inefficiency

India, along with all the other South Asian states, is not a party to the United Nations Convention Relating to the Status of Refugees 1951 (1951 Convention) and the Protocol Relating to the Status of Refugees 1967 (1967 Protocol). India maintains that the 1951 Convention is Euro-centric and cannot be effectively implemented in the South Asian region. India also believes that it has always been generous towards refugees, even without being party to the 1951 Convention. However, critics argue that India is hesitant to accept the financial responsibility that ensues from undertaking the obligations of the 1951 Convention. The World Refugee Survey 2007, which rates refugee protection in countries on four categories of rights -- physical protection, freedom from illegal detention, freedom of movement and the right to earn a livelihood -- has rated India 'D' in three categories, signifying 'a level of treatment marginally above the rest' and 'C' with regard to freedom from illegal detention, signifying that refugees have reasonable access to the Indian judiciary (SAHRDC, July 11, 2007).

The refugee protection regime in India

Given the legal vacuum with regard to refugees, the process of addressing large-scale refugee inflows over the years has been ad hoc, mainly through executive action. This process is far from appropriate and is often governed by 'political instinct' based on India's diplomatic relations with the country of origin at the time (Acharya: 2004).

The Foreigners Act 1946 is an outdated and draconian piece of legislation that defines a foreigner as any person who is not a citizen of India, and includes refugees. A similar provision was also introduced through an amendment to the Indian Citizenship Act in 2003 which fails to make any distinction between refugees and their special circumstances and other foreigners and illegal immigrants.

Under Section 3 (2) of the Act, the Indian government has wide discretionary powers to regulate the entry and movement of foreigners within India. The Foreigners Order 1948 also restricts the entry of foreigners into Indian territory at given entry points without proper authorisation. Every foreigner should be in possession of a valid passport and visa at the time of entry into India, unless exempted. Most often, refugees are not in possession of these documents and thus are refused entry into India.

Although India is not a party to the 1951 Convention, it is bound by the international customary law principle of non-refoulement (this principle prevents a country from expelling refugees to countries where their life and liberty are under serious threat).The Foreigners Act allows the Indian government to refoule foreigners, including asylum-seekers, through deportation, and is therefore in violation of international customary law.

Article 51 (c) of the Indian Constitution provides that India "shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another". Article 253 of the Constitution gives the Indian Parliament the "power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body". The Indian judiciary has also ruled in favour of harmonious construction of international and domestic law when it is consistent with fundamental rights (Visakha v State of Rajasthan,1997 [6] [SCC] 241).

The scope and ambit of Articles 14 and 21 of the Indian Constitution, through progressive judicial interpretation, extends to non-citizens including refugees. In the landmarkChakma refugees case, the Supreme Court clearly held that the State was under a constitutional obligation to protect refugees (National Human Rights Commission v State of Arunachal Pradesh, AIR 1996 SC 1234). InMalvika Karlekar v Union of India(Criminal Writ Petition No 243 of 1988), the Supreme Court stayed the deportation of Burmese refugees in the Andaman and Nicobar Islands, as their applications for refugee status were pending with the UNHCR.

A national model refugee law for granting statutory protection to refugees has long been considered in India but is yet to be implemented. The model law aims to harmonise norms and standards on refugee law, establish a procedure for granting refugee status and guarantee them their rights and fair treatment.

In India, refugees are placed under three broad categories. Category I refugees receive full protection from the Indian government (for example, Tamil refugees from Sri Lanka); Category II refugees are those who are granted refugee status by the UNHCR and are protected under the principle of non-refoulement (for example, Burmese and Afghan refugees); and Category III refugees who are neither recognised by the Indian government nor the UNHCR but have entered India and assimilated into the local community (for example, Chin refugees from Burma living in the state of Mizoram) (SAHRDC: 1997).

This article explores the problems of Category II refugees in India, in light of the office of the UNHCR's discharge of its protection function, through an analysis of the UNHCR's refugee status determination process and refugee assistance/support programmes and services provided to recognised refugees.

UNHCR and refugee protection in India

Those asylum-seekers who are not offered direct protection by the Indian government can apply for refugee status with the UNHCR. The Statute of the Office of the UNHCR empowers the UNHCR to issue refugee certificates to those who fulfil the criteria under the 1951 Convention after having conducted interviews with such asylum-seekers for refugee status determination. The refugee certificates issued by the UNHCR are, in practice, recognised by the Indian government, creating a de facto system of refugee protection in India.

In this context, it would be interesting to note that the Indian government and the UNHCR share a paradoxical relationship, wherein India has been a member of the executive committee (ExCom) of the UNHCR since 1995, without being a party to the 1951 Convention and undertaking its obligations. The UNHCR office is situated in New Delhi and is not allowed to operate in other parts of the country, other than in Tamil Nadu where it provides limited repatriation assistance to Sri Lankan Tamil refugees recognised by the Indian government. As a result, refugees located in remote parts of India do not have access to UNHCR assistance; for example, Burmese refugees living in Mizoram live as illegal immigrants as they do not have adequate resources to go to Delhi to seek UNHCR protection.

As of 2005, there were 11,356 urban refugees (male: 6,053, female: 5,606) under UNHCR protection in New Delhi although the total number of refugees stands at 139,283. In 2005, the UNHCR office in New Delhi recognised 772 individuals as refugees, among 947 new applicants. Among those already recognised as refugees by the UNHCR, many were provided with durable solutions through voluntary repatriation (2,792), resettlement in a third country (155) and naturalisation (1) (UNHCR: 2005).

The 1997 UNHCR Policy on Urban Refugees requires the agency to provide a regular monthly subsistence allowance (SA) to recognised refugees and their families, but it requires that "assistance to refugees should be given in a manner that encourages self-reliance and does not foster long-term dependency". In addition to the SA, recognised refugees are also provided with other community services by the UNHCR through various local implementing partners, including medical, educational and legal assistance. However, the Evaluation and Policy Analysis Unit of the UNHCR has noted with concern that the policy does not distinguish between State and non-State parties to the 1951 Convention and the difference in legal status of refugees located therein, and fails to establish a clear link between "attainment of self-reliance" and local integration. Despite these valid criticisms, the policy is yet to be reviewed.

The UNHCR also faces a severe resource crunch, with the annual UNHCR budget for India shrinking from US$ 3,858,589 in 2006 to US$ 3,438,192 in 2007. India's share in the total UNHCR annual budget for the South Asian region also dropped from 17% in 2006 to 16.7% in 2007 (UNHCR: 2007). In spite of being a member of the UNHCR ExCom, India's official contribution of a modest sum of US$ 9,001 towards UNHCR programmes for 2006 is among the lowest of all donors.

In its country action plan for 2006, the UNHCR has laid down certain strategic goals for its India programme, which include improving the protection environment for refugees in India and ensuring age and gender mainstreaming in all its activities, strongly pursuing the need for adoption of a domestic legal mechanism for refugee protection with the Indian government, finding durable solutions for Afghan mandate refugees, ensuring voluntary repatriation of Sri Lankan Tamil refugees, encouraging partnerships between the government, NGOs and the UNHCR, and pursuing self-reliance goals and being sensitive to refugee welfare and their vulnerabilities (UNHCR: 2006).

UNHCR's report card on refugee protection in India

Apart from their struggle for legal recognition in the host country, India, refugees face discrimination and harassment at the hands of the government, police authorities and local communities. While it is acknowledged that refugee protection cannot be achieved unless India ratifies the 1951 Convention and establishes a domestic legal framework for refugees, it can be argued that the UNHCR has been largely unsuccessful in providing 'protection' and 'durable solutions' to refugees. This section will critique the UNHCR's policies towards refugees through an analysis of its refugee determination process and the extent and nature of community services provided to refugees.

The refugee determination process: In the absence of a concrete domestic refugee policy in India, the refugee certificate of the UNHCR is of utmost importance. However, refugees complain that the UNHCR refugee determination process is arbitrary, complicated and full of delays. SAHRDC reports that refugees and their representative NGOs do not understand the UNHCR's criteria for refugee status determination and often complain of unfair treatment during the interview process. Language barriers between refugees and UNHCR authorities serve as a severe constraint in effective communication, despite the presence of Burmese interpreters. Those whose applications are rejected are not given reasons for the same and yet they have the right to appeal the decision before the same authorities, rendering the appeals process practically meaningless. Delays in the refugee determination process, with interviews being rescheduled, cancelled or interview letters not reaching on time further jeopardise the refugees' conditions.

Subsistence allowance (SA) and self-reliance: The SA scheme administered by the YMCA, the UNHCR's implementing partner, provides Rs 1,400 per month to recognised refugees, Rs 600 each to the first three dependants, Rs 450 each for the next three, and Rs 250 each for the remaining family members. The SA scheme is discriminatory towards women, as a single woman who receives Rs 1,400 per month as SA receives only Rs 600 per month when she gets married, as a dependant of her husband (SAHRDC: 2003). As regards disbursement of SA, it has been said that the YMCA has been irregular and non-cooperative. The SA scheme is gradually being phased out since mid-2003 due to increasing resource constraints at the UNHCR.

In its bid to promote self-sufficiency among refugees, the UNHCR introduced the Self-Reliance Programme administered by the Don Bosco Ashalayam (DBA). The DBA provides six-month vocational courses in computers, beauty parlour training, TV repair, tailoring, etc. In addition, the YMCA provides short language courses to refugees in Hindi and English. But many refugees have been forced to discontinue classes due to the poor quality of training, short duration of courses, etc. Given the fact that even recognised refugees do not have the legal right to work in India and are not issued a valid work permit, these vocational training courses are futile as they do not lead to self-reliance, as unrealistically envisaged by the UNHCR. Even those refugees who do complete the vocational training courses on offer have no guarantee of employment or a regular source of income. Lack of legal protection over identity and employment subject them to workplace and pay-related discrimination. They can seek employment in the informal job market and their employers can hire and fire them without too much difficulty.

The Basic Salary Scheme being implemented from 2005 ensures that those recognised refugees who secure employment receive a fixed consolidated monthly salary in accordance with minimum wage standards. This minimum wage top-up programme ensures that the UNHCR pays the difference in salary if refugees earn less than the fixed basic salary under the scheme. Needless to say, the Basic Salary Scheme applies to those recognised refugees who successfully secure and sustain employment, and the basic salary is often not enough to make ends meet, especially for larger refugee families. According to noted human rights activist Ravi Nair, many recognised refugees cannot avail of this scheme as they are unable to provide the necessary documents such as a residential permit and address proof establishing their identity as refugees, to the UNHCR.

Living conditions:Most refugees living in India do not see 'local integration' as a viable solution to their problems. This is primarily attributable to their antagonistic relationship with the local community. As foreigners, they are often treated as outsiders by the local population and language barriers further deepen the divide between the two. Burmese refugees living in west Delhi face discrimination at the hands of their host community. Landlords evict refugee families on a regular basis on the pretext of late rent payments and other related problems. Given their poor financial position, refugees are forced to live in small, overcrowded apartments with no electricity, water, cooking or sanitation facilities. Although the YMCA conducts home visits to assess the real living conditions of refugees, the infrequent nature of these visits and insensitivity of staff conducting the visits hurt rather than help refugee interests. With respect to Afghan refugees, SAHRDC reported that inconsistent needs assessment surveys conducted by the YMCA, and lack of understanding of refugee problems, led to SA cut-offs (SAHRDC: 1999).

Medical and educational assistance: The UNHCR offers medical services to recognised refugees through the Voluntary Health Association of Delhi (VHAD). The VHAD clinic provides limited medical facilities and basic medicines free of cost to refugees. VHAD/UNHCR also refers patients to government hospitals and reimburses medical expenses to a limited extent, only if the patient is being treated at a government medical facility. Expenses incurred for medical treatment at a private hospital are not reimbursed by VHAD/UNHCR. Even those who are eligible for medical reimbursement do not receive it in full and the procedure for providing reimbursements is also extremely discretionary. The death of Iranian refugee Jehangir Eslah, on June 20, 2007 (World Refugee Day), on being denied medical reimbursement by the UNHCR as he had sought private medical care instead of government medical care, exposed the insensitivity of the UNHCR administration towards refugees.

Similarly, refugee children are provided an education allowance by the UNHCR so that they can continue their education at the primary and higher level. But this education allowance does not cover the full costs of a child's education. Although admission to government schools provides subsidised education facilities to children, the admission procedure is strict and cumbersome, as a result of which refugee children often find it difficult to gain admission. For example, many children are unable to fulfil the strict requirement of a birth certificate as identity proof and adequate residential proof. Thus, they take admission in private schools which are far more expensive. Many children enrolled in private schools are forced to drop out midway as their parents are unable to continue paying the high school fees. With regard to Burmese refugees, it has been seen that families do not see themselves living in India in the long term. They have an unrealistic expectation of being resettled in a developed country in the immediate future and do not want their children to study in government schools, despite their economic situation, because the medium of instruction is Hindi, not English. Some refugee parents prefer to keep their children out of school rather than send them to Hindi-medium government schools.

Legal services:The Socio-Legal Information Centre (SLIC) is authorised by the UNHCR to provide legal assistance to recognised refugees. Refugees are required to obtain a residential permit (RP) from the Foreigners Regional Registration Office (FRRO) of the Ministry of Home Affairs (MHA) which has to be renewed on a bi-annual basis. Refugees are harassed by FRRO officials who refuse to issue or renew RPs or unnecessarily delay the process. Refugees also face the constant threat of illegal arrest, detention and deportation. According to the World Refugee Survey 2007, a number of Burmese nationals were deported from Mizoram and the UNHCR could not intervene due to lack of access. Some Bhutanese refugees were also deported to Nepal. Four refugees were detained in West Bengal on illegal immigration charges, of whom three were subsequently released. Similar cases of detention were also reported from New Delhi. Despite the high number of illegal arrests and detention of refugees, the SLIC has been of limited assistance.

Despite its limitations, however, the UNHCR is often the last beacon of hope for many refugees who flee to India in search of a secure refuge. However, in the recent past, refugees under UNHCR protection have been losing faith in a system that is plagued by insensitivity and inefficiency. To redeem itself in the eyes of those it seeks to protect, the UNHCR must engage directly with refugee communities to better understand their problems rather than delegate all responsibility to its implementing partners. It must also strengthen the refugee status determination process and ensure effective monitoring and implementation of its health, education and legal services. At the same time, it must exert pressure on the Indian government to ratify the 1951 Convention and enact domestic legislation for refugee protection.

References

  1. USCRI, World Refugee Survey 2007: Country Report: India, at http://www.refugees.org/countryreports.aspx?id=2000
  2. UNHCR, 2005 Statistical Yearbook: India, at http://www.unhcr.org/statistics/STATISTICS/4641be59e.pdf
  3. UNHCR, Country Operations Plan: Overview: India (2006), at http://www.unhcr.org/home/RSDCOI/4332c6232.pdf
  4. UNHCR, Contribution to UNHCR Programmes for Budget Year 2006, February 15, 2007, at http://www.unhcr.org/partners/PARTNERS/451be6af2a.pdf
  5. UNHCR, UNHCR Global Appeal 2007-South Asia Regional Overview, at http://www.unhcr.org/home/PUBL/455443ab22.pdf
  6. 'India Scores Low on Refugee Protection', SAHRDC press release, July 11, 2007, at http://www.uscr.org/uploadedFiles/Investigate/Anti_Warehousing/SAHRDC.pdf
  7. SAHRDC, 'Refugee Protection in India', October 1997, at http://www.hrdc.net/sahrdc/resources/refugee_protection.htm
  8. SAHRDC, 'Abandoned and Betrayed: Afghan Refugees Under UNCHR Protection in New Delhi', November 1999
  9. SAHRDC, 'Denied Hope, Denied Respect: Burmese Refugees in New Delhi', HRF/78/03, June 12, 2003, at http://www.hrdc.net/sahrdc/hrfeatures/HRF78.htm
  10. Bhairav Acharya, 'The Law, Policy and Practice of Refugee Protection in India' (2004), at http://news.indlaw.com/publicdata/articles/pilsarc04.pdf
  11. Ravi Nair, 'The UNHCR Refugee Agency Has Been Oddly Listless in Addressing the Problems Faced by Burmese Refugees in Delhi', Himal South Asian, December 2006, at http://www.himalmag.com/2006/december/report_2.htm

(Ipshita Sengupta is a human rights researcher based in New Delhi)

InfoChange News & Features, July 2008