Issue of Illegal Migrants | 13 Aug 2021

Why in News

Recently, the Ministry of Home Affairs has informed in the Lok Sabha that according to some reports some Rohingya migrants are indulging in illegal activities.

The response came on the queries about the current situation of Rohingya living illegally in various parts of the country.

Rohingya

The Rohingya people are a stateless, Indo-Aryan ethnic group who reside in Rakhine State, Myanmar.
They are described by the United Nations (UN) as one of the most persecuted minorities in the world.
The Rohingya refugee crisis is caused by the Rohingya people having long faced violence and discrimination in Myanmar.
To escape discrimination and violence in Myanmar, minority Rohingya Muslims have for decades fled from the Buddhist-majority country to neighboring Bangladesh and other countries, including India.

Key Points

Issues & Concerns:
- Threat to National Security:
  - The continuance of the illegal immigration of Rohingyas into India and their continued stay in India is found to be having serious national security ramifications and poses serious security threats.
- Clash of Interests:
  - It impacts the interests of local populations in the areas seeing large-scale influxes of illegal immigrants.
- Political Instability:
  - It also increases the political instability when leaders start mobilising the perception of the citizens of the country against the migrants by the elites to grab political power.
- Rise of Militancy:
  - The persistent attacks against the Muslims perceived as illegal migrants has given way to radicalisation.
- Human trafficking:
  - In the recent decades, trafficking of women and human smuggling have become quite rampant across the borders.
- Disturbance in Law and Order:
  - The rule of law and integrity of the country are undermined by the illegal migrants who are engaged in illegal and anti-national activities.
Steps Taken by Government:
- Centre had issued instructions to the State governments and Union Territory administrations, advising them to sensitise the law enforcement and intelligence agencies to take appropriate steps for prompt identification of illegal migrants.
- Consolidated instructions to tackle the issue of overstay and illegal migration of foreign nationals have also been issued.
Existing Legal Framework:
- The Passport (Entry into India) Act, 1920:
  - The act empowered the government to make rules requiring persons entering India to be in possession of passports.
  - It also granted the government the power to remove from India any person who entered without a passport.
- Foreigners Act, 1946:
  - It replaced the Foreigners Act, 1940 conferring wide powers to deal with all foreigners.
  - The act empowered the government to take such steps as are necessary to prevent illegal migrants including the use of force.
  - The concept of ‘burden of proof’ lies with the person, and not with the authorities given by this act is still applicable in all States and Union Territories. This concept has been upheld by a Constitution Bench of the Supreme Court.
  - The act empowered the government to establish tribunals which would have powers similar to those of a civil court.
  - Recent amendments (2019) to the Foreigners (Tribunals) Order, 1964 empowered even district magistrates in all States and Union Territories to set up tribunals to decide whether a person staying illegally in India is a foreigner or not.
- The Registration of Foreigners Act, 1939:
  - Registration under Foreigners Regional Registration Officer (FRRO) is a mandatory requirement under which all foreign nationals (excluding overseas citizens of India) visiting India on a long term visa (more than 180 days) are required to register themselves with a Registration Officer within 14 days of arriving in India.
  - Pakistani nationals visiting India are required to register within 24 hours of arrival regardless of the duration of their stay.
- The Citizenship Act, 1955:
  - It provides for the acquisition and determination of Indian citizenship.
  - Moreover, the Constitution has also provided citizenship rights for Overseas Citizens of India, Non-Resident Indians, and Persons of Indian Origin.

Illegal Migrants Vs Refugee

Illegal Migrants:
- The foreign nationals who enter the country without valid travel documents are treated as illegal migrants.
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.
  - India is not a signatory to the 1951 UN Convention relating to the Status of Refugees and the 1967 Protocol thereon.
- Stateless persons may also be refugees in this sense, where country of origin (citizenship) is understood as ‘country of former habitual residence’.

Way Forward

In spite of not being a party to the 1951 Refugee Convention and its 1967 Protocol, India has been one of the largest recipients of refugees in the world.
However, if India had domestic legislation regarding refugees, it could have deterred any oppressive government in the neighborhood to persecute their population and make them flee to India.
Further, the absence of national refugee laws has blurred the distinction between refugees and economic migrants, leading to the denial of any assistance to even genuine asylum seekers.
After India enacts its domestic refugee laws, it should also consider signing the 1951 Refugee Convention and the 1967 Protocol after recording its reservations.
It would be still better if India took the initiative to encourage other countries in the South Asia Association for Regional Cooperation (SAARC) to develop a SAARC convention or declaration on refugees in which member states would agree to ratify the 1951 Refugee Convention and the 1967 Protocol and record their reservations to various clauses.

Source: PIB