The following first appeared on The Interdependent's website on June 9 2012.
The predominantly Muslim Rohingya people live along the border between Bangladesh and Myanmar and are heavily discriminated against in both countries. They are denied citizenship and passports in both countries. In Myanmar, their mosques are boarded up. They must pay hefty taxes to get married, and their movement between villages is restricted.
Following their protest, the Rohingya who came to New Delhi were granted special asylum seeker cards that are all but identical to those of refugees in India. The cards are unique to the group and designed to shield them against discrimination by schools, landlords and the police. India also granted them long-term stay visas, allowing them to stay on in India while their asylum claims are adjudicated.
The UNHCR hailed the move as a victory, but it also highlighted the ad hoc system in India, where refugee status and even the right to avoid deportation can be whimsical and vary between different nationalities and ethnic groups.
Despite playing host to nearly 200,000 refugees, India has no law governing their right to stay in the country.
Currently, refugees are allowed to stay on in India thanks to a series of case laws interpreting India's Bill of Rights. The Supreme Court has ruled that asylum seekers at least have the right to have their refugee status adjudicated before they are deported.
The UNHCR argues that those legal protections are insufficient and a formal system to handle refugee claims is needed.
"India needs a legal framework because all the refugee communities are granted different privileges," said Nayana Bose, external communications officer for UNHCR in New Delhi. "The Tibetans were given land and help to build monasteries. Somalis only last week were granted the ability to apply for residency permits."
Bose was quick to emphasize that India freely welcomes refugees, and that despite not signing the convention on refugee protection, the country followed most of the principles contained within the document. "There are very few cases of refoulement," she said, referring to the practice of deporting refugees back to their home countries. "To our knowledge, less than 10 refugees have been deported since 1981."
When the UN convention on refugees was introduced in 1954, "India found the refugee convention to be Euro-centric," said Rajeev Dhavan, a leading legal advocate for refugees in India. "India made a conscious decision to stay out because of its non-aligned status." The initial convention was designed to protect European refugees after World War II.
When the UN introduced the so-called 1967 Protocol that removed the territorial restrictions on refugee protection, India again refused to sign, claiming that the convention was part of the Cold War struggle, in which it refused to take sides, explained Dhavan. "It joined the executive committee of the convention, because Pakistan joined, but it did not sign the convention."
India's refugee population is divided into two major categories: those who entered India as part of a mass migration and individual asylum seekers. The former group makes up the overwhelming majority of the refugee community and is composed mostly of Tibetans and Sri Lankans. India deputizes the UNHCR to determine the status of the remaining 22,000 individual asylum seekers.
Of that 22,000, "less than a 1,000 people don't get residency permits, mostly Iranians, Somalis and Iraqis," said Bose.
Less than 1,000 out of 200,000 may sound like a good figure, but experts assert that the small numbers mask larger problems with India's favoritism toward some groups and apathy toward the plight of refugees.
The Rohingyas are a good example of India's apathy and, at times, outright hostility to some asylum seekers.
"One of the major problems with the Rohingyas is that they are Muslim," said Sabyasachi Basu Roy Chaudhary, president of the Calcutta Research Group, which focuses heavily on refugee protection. "There is pressure from right-wing Hindu parties like the Bharata Janata Party (BJP) and Shiv Sena." Members of these parties have expressed concern that some Rohingyas have joined the Harakat ul Jihad al Islamic, a South Asian Islamic fundamentalist organization.
The BJP responded to the Rohingya protest by calling for their expulsion from the country. When news of the Rohingya protest began making headlines in the international press in late May, the BJP demanded to know what the Indian government was doing to evict and deport them. The Hindu nationalist group Vishwa Hindu Parishad called them a "security risk" because of their alleged ties to militant groups.
The demand for the deportation of Rohingyas may be hypocritical given the lack of controversy over many, non-Muslim refugee populations, but under Indian law, they are justified.
"India is governed by the Foreigners Act of 1946," which requires them to report to the nearest police station and register their presence with the government upon arrival in India said Dhavan. "If you are here in violation of the act, you are to be deported."
India, however, turns a blind eye to violators in the case of asylum seekers. The system works, most of the time. "In practical terms, refugees are protected," said Bose. India respects UNHCR's rulings on refugee status, and grants them the right to live in India, even in those cases where it refuses to grant residence visas.
However, India's lack of a comprehensive framework to handle refugees leaves wide gulfs through which asylum seekers fall. "We don't keep track of those whose asylum claims are rejected. Some choose to go home, others stay on illegally. That is the gap," said Bose. "If the government dealt with this, they would take them in, decide their status and deport those who fail to meet the test."
Additional problems arise in UNHCR's limited reach within India, which is predominantly limited to working in Delhi and a field office in Tamil Nadu in the South. When the Rohingyas set up camp in Delhi, the UNHCR had trouble verifying many of their claims of discrimination, chief of which was the inability to get their children into government schools. Technically, anyone in India can attend free public schools, but since the Rohingyas live mostly outside Delhi, "we don't know why they are having problems with getting their children into schools."
The UNHCR faces the same problem with other refugee communities from Myanmar and other countries along India's eastern borders. There are around 7,000 Myanmarese refugees registered with UNHCR in New Delhi, but according to Human Rights Watch and other international organizations, there are an estimated 50,000 to 100,000 more Myanmarese living illegally in the North East, where UNHCR is denied access for security reasons.
Northeastern India borders several countries, including Myanmar, Nepal, Bangladesh and China. India heavily restricts travel, even by Indians, to these areas.
Despite the obvious flaws in the system, India is loath to change it. Experts say that in the case of the Rohingyas, the problem is mostly politics. In addition to opposition from right-wing parties, the government must overcome objections from northeastern states, where most refugees from Myanmar end up. They argue that creating a scheme under which people could claim refugee status would result in a flood of refugees and an explosion of inter-ethnic and tribal violence, said Dhavan.
Northeastern India is a hodgepodge of tribal and ethnic communities that often straddle national boundaries. Violence has broken out several times in the decades since the partition of the subcontinent when one community is resettled in areas traditionally belonging to another community.
For example, when 100,000 members of the Chakmas hill tribe from Chittagong fled in 1964 after their homeland was flooded by dam construction, India resettled 40,000 of them in Arunchal Pradesh. They suffered a violent backlash from the indigenous people in the mid-90s. They were never granted citizenship, and remain stateless to this day.
In the 1980s, India tried to set up tribunals in the northeast to adjudicate refugee claims, but it was shot down by the Supreme Court for bias and an overly broad mandate.
Then there are India's myriad concerns with militancy. "The Indian government says that, for security reasons, we cannot have terrorists entering our country masquerading as refugees," Dhavan said. "This is untenable since the stringent refugee determination process is designed to separate the real refugees and illegal migrants, including terrorists."
Nationally, Indians are sympathetic toward refugees given that many of their forefathers were refugees during the partition, said Dhavan. It is merely the opposition of border states in the northeast that prevents such a law.
Various efforts by citizen and lawyer groups have been made, including by Dhavan, to have a refugee law put in place. "There has been no response," he said.
"There irony and contradiction in India's stance on refugees," said Dhavan. "It joined the executive committee on the UN convention, but not the convention itself. Its Supreme Court says refugee protection is a fundamental right, but this is not reflected in the law. India welcomes huge migration from neighboring countries, making it one of the most welcoming in the world, but its policy on refugees is overly strict."
The UNHCR, meanwhile, is trying to do its best with a limited budget and mandate. "The biggest problem with the refugee problem is poverty. They live in bad situations because they cannot find good work," said Bose. Unlike in states that have signed the UN convention, India does not allow its refugees the right to work, meaning that many have to seek out employment in the so-called informal sector as maids, waiters or tailors. Many of these people are exploited due to their lack of other options.
The UNHCR runs a handful of production centers to employ the most desperate, but it can afford only to pay around 3,000 rupees ($55) a month.
"Living expenses are going up," said Bose. "There is a lot we can do with more money."
UN Refugee Agency Faces Challenges in India
In late April, around 2,500 Rohingyas asylum seekers camped outside the office of the United Nations High Commissioner for Refugees in New Delhi for a month, seeking to pressure the High Commissioner to grant them refugee status. Their protest brought into focus India's broken refugee system. Experts are now urging India to bolster its protection system for refugees by signing the UN convention on refugees.The predominantly Muslim Rohingya people live along the border between Bangladesh and Myanmar and are heavily discriminated against in both countries. They are denied citizenship and passports in both countries. In Myanmar, their mosques are boarded up. They must pay hefty taxes to get married, and their movement between villages is restricted.
Following their protest, the Rohingya who came to New Delhi were granted special asylum seeker cards that are all but identical to those of refugees in India. The cards are unique to the group and designed to shield them against discrimination by schools, landlords and the police. India also granted them long-term stay visas, allowing them to stay on in India while their asylum claims are adjudicated.
The UNHCR hailed the move as a victory, but it also highlighted the ad hoc system in India, where refugee status and even the right to avoid deportation can be whimsical and vary between different nationalities and ethnic groups.
Despite playing host to nearly 200,000 refugees, India has no law governing their right to stay in the country.
Currently, refugees are allowed to stay on in India thanks to a series of case laws interpreting India's Bill of Rights. The Supreme Court has ruled that asylum seekers at least have the right to have their refugee status adjudicated before they are deported.
The UNHCR argues that those legal protections are insufficient and a formal system to handle refugee claims is needed.
"India needs a legal framework because all the refugee communities are granted different privileges," said Nayana Bose, external communications officer for UNHCR in New Delhi. "The Tibetans were given land and help to build monasteries. Somalis only last week were granted the ability to apply for residency permits."
Bose was quick to emphasize that India freely welcomes refugees, and that despite not signing the convention on refugee protection, the country followed most of the principles contained within the document. "There are very few cases of refoulement," she said, referring to the practice of deporting refugees back to their home countries. "To our knowledge, less than 10 refugees have been deported since 1981."
When the UN convention on refugees was introduced in 1954, "India found the refugee convention to be Euro-centric," said Rajeev Dhavan, a leading legal advocate for refugees in India. "India made a conscious decision to stay out because of its non-aligned status." The initial convention was designed to protect European refugees after World War II.
When the UN introduced the so-called 1967 Protocol that removed the territorial restrictions on refugee protection, India again refused to sign, claiming that the convention was part of the Cold War struggle, in which it refused to take sides, explained Dhavan. "It joined the executive committee of the convention, because Pakistan joined, but it did not sign the convention."
India's refugee population is divided into two major categories: those who entered India as part of a mass migration and individual asylum seekers. The former group makes up the overwhelming majority of the refugee community and is composed mostly of Tibetans and Sri Lankans. India deputizes the UNHCR to determine the status of the remaining 22,000 individual asylum seekers.
Of that 22,000, "less than a 1,000 people don't get residency permits, mostly Iranians, Somalis and Iraqis," said Bose.
Less than 1,000 out of 200,000 may sound like a good figure, but experts assert that the small numbers mask larger problems with India's favoritism toward some groups and apathy toward the plight of refugees.
The Rohingyas are a good example of India's apathy and, at times, outright hostility to some asylum seekers.
"One of the major problems with the Rohingyas is that they are Muslim," said Sabyasachi Basu Roy Chaudhary, president of the Calcutta Research Group, which focuses heavily on refugee protection. "There is pressure from right-wing Hindu parties like the Bharata Janata Party (BJP) and Shiv Sena." Members of these parties have expressed concern that some Rohingyas have joined the Harakat ul Jihad al Islamic, a South Asian Islamic fundamentalist organization.
The BJP responded to the Rohingya protest by calling for their expulsion from the country. When news of the Rohingya protest began making headlines in the international press in late May, the BJP demanded to know what the Indian government was doing to evict and deport them. The Hindu nationalist group Vishwa Hindu Parishad called them a "security risk" because of their alleged ties to militant groups.
The demand for the deportation of Rohingyas may be hypocritical given the lack of controversy over many, non-Muslim refugee populations, but under Indian law, they are justified.
"India is governed by the Foreigners Act of 1946," which requires them to report to the nearest police station and register their presence with the government upon arrival in India said Dhavan. "If you are here in violation of the act, you are to be deported."
India, however, turns a blind eye to violators in the case of asylum seekers. The system works, most of the time. "In practical terms, refugees are protected," said Bose. India respects UNHCR's rulings on refugee status, and grants them the right to live in India, even in those cases where it refuses to grant residence visas.
However, India's lack of a comprehensive framework to handle refugees leaves wide gulfs through which asylum seekers fall. "We don't keep track of those whose asylum claims are rejected. Some choose to go home, others stay on illegally. That is the gap," said Bose. "If the government dealt with this, they would take them in, decide their status and deport those who fail to meet the test."
Additional problems arise in UNHCR's limited reach within India, which is predominantly limited to working in Delhi and a field office in Tamil Nadu in the South. When the Rohingyas set up camp in Delhi, the UNHCR had trouble verifying many of their claims of discrimination, chief of which was the inability to get their children into government schools. Technically, anyone in India can attend free public schools, but since the Rohingyas live mostly outside Delhi, "we don't know why they are having problems with getting their children into schools."
The UNHCR faces the same problem with other refugee communities from Myanmar and other countries along India's eastern borders. There are around 7,000 Myanmarese refugees registered with UNHCR in New Delhi, but according to Human Rights Watch and other international organizations, there are an estimated 50,000 to 100,000 more Myanmarese living illegally in the North East, where UNHCR is denied access for security reasons.
Northeastern India borders several countries, including Myanmar, Nepal, Bangladesh and China. India heavily restricts travel, even by Indians, to these areas.
Despite the obvious flaws in the system, India is loath to change it. Experts say that in the case of the Rohingyas, the problem is mostly politics. In addition to opposition from right-wing parties, the government must overcome objections from northeastern states, where most refugees from Myanmar end up. They argue that creating a scheme under which people could claim refugee status would result in a flood of refugees and an explosion of inter-ethnic and tribal violence, said Dhavan.
Northeastern India is a hodgepodge of tribal and ethnic communities that often straddle national boundaries. Violence has broken out several times in the decades since the partition of the subcontinent when one community is resettled in areas traditionally belonging to another community.
For example, when 100,000 members of the Chakmas hill tribe from Chittagong fled in 1964 after their homeland was flooded by dam construction, India resettled 40,000 of them in Arunchal Pradesh. They suffered a violent backlash from the indigenous people in the mid-90s. They were never granted citizenship, and remain stateless to this day.
In the 1980s, India tried to set up tribunals in the northeast to adjudicate refugee claims, but it was shot down by the Supreme Court for bias and an overly broad mandate.
Then there are India's myriad concerns with militancy. "The Indian government says that, for security reasons, we cannot have terrorists entering our country masquerading as refugees," Dhavan said. "This is untenable since the stringent refugee determination process is designed to separate the real refugees and illegal migrants, including terrorists."
Nationally, Indians are sympathetic toward refugees given that many of their forefathers were refugees during the partition, said Dhavan. It is merely the opposition of border states in the northeast that prevents such a law.
Various efforts by citizen and lawyer groups have been made, including by Dhavan, to have a refugee law put in place. "There has been no response," he said.
"There irony and contradiction in India's stance on refugees," said Dhavan. "It joined the executive committee on the UN convention, but not the convention itself. Its Supreme Court says refugee protection is a fundamental right, but this is not reflected in the law. India welcomes huge migration from neighboring countries, making it one of the most welcoming in the world, but its policy on refugees is overly strict."
The UNHCR, meanwhile, is trying to do its best with a limited budget and mandate. "The biggest problem with the refugee problem is poverty. They live in bad situations because they cannot find good work," said Bose. Unlike in states that have signed the UN convention, India does not allow its refugees the right to work, meaning that many have to seek out employment in the so-called informal sector as maids, waiters or tailors. Many of these people are exploited due to their lack of other options.
The UNHCR runs a handful of production centers to employ the most desperate, but it can afford only to pay around 3,000 rupees ($55) a month.
"Living expenses are going up," said Bose. "There is a lot we can do with more money."
