World Refugee Survey 2009 - India

Introduction

India hosted around 456,000 refugees, including about 96,000 Sri Lankans, mostly Tamils fleeing fighting between the Liberation Tigers of Tamil Eelam and Sri Lankan armed forces. About 73,300 stay in more than a hundred camps in Tamil Nadu State and 26,300 outside the camps but registered with the nearest police stations. About 2,800 more entered in 2008.

Some 110,000 Tibetans, about 80 percent of whom lived in camps or scattered settlements, lived more freely in the country. Beginning in 1959, Tibetans followed the Dalai Lama to India, settling in Dharamsala in the north. A second wave occurred in 1979 after China relaxed its emigration policy.

About 100,000 ethnic Chin from Myanmar lived under the most restricted conditions in the eastern state of Mizoram with a few hundred in New Delhi. They were fleeing persecution, including forced labor and severe economic privation, because of their Christian faith and non-Burman ethnicity.

An estimated 30,000 Afghans remained although only about 9,000 held UNHCR mandate status. Around 25,000 Bhutanese refugees also resided in India as more left Nepal for the Indian States of West Bengal, Sikkim, and Bihar and about 25,000 Nepalis remained in fear of Maoists now in the Government of Nepal.

India also hosted some 600 Somali refugees, who began fleeing their country after the collapse of the government in 1991 and an unknown number of Iraqi and Iranian refugees and about 200 Palestinians from Iraq also resided in India. The Government deported some, ignored others, and issued others residence permits.

Some 65,000 ethnic Chakmas from Bangladesh remained mostly in the states of Arunachal Pradesh, Mizoram, and Assam. The Supreme Court established their Indian nationality but the actual naturalization process proceeded slowly.

2008 Summary

As the Government did not grant access to Mizoram State, it was impossible to assess whether refoulement continued as in the past there.

For a ninth year, India continued to detain 34 Myanmarese alleged members of the National United Party of Arakan and Karen National Union although their trial on weapons charges continued at year's end.

In early February, local youths attacked a Myanmarese Chin asylum seeker in west Delhi, reportedly beating him for more than an hour and stealing 860 rupees (about $17) and his temporary UN identity card. Police arrested the attackers and took the victim to a hospital.

Also in March, police in Dharamsala barred a group of over 100 Tibetans on a five-month march back to Tibet to protest the Beijing Olympics from leaving Kangra district surrounding Dharamsala. When they refused, police arrested and detained for them for 11 days. A few days later, police in Dehra, 20 km outside Kangra district, arrested 130 marchers, detaining them for two weeks.

In April, police arrested and detained 33 members of the Tibetan Youth Congress (TYC) participating in an Independence Torch relay in Tohar. A few days later, police arrested 48 TYC activists outside the Chinese embassy in Delhi protesting the previous days arrests. The next day, police arrested nearly all of the 300 TYC members protesting the arrival of the Olympic Torch in Mayapuri, reportedly beating and injuring some of the protestors. The Ministry of Home Affairs announced that authorities had arrested 680 Tibetan protestors throughout the month but released them later on bail and personal bonds.

In May, police in West Bengal arrested three Bhutanese refugees without warrants (which the law does not require for such offences) for alleged involvement in an April bombing in the state which killed five.

In June, following complications arising from the failure to apply the Indian law that prohibits refugees from purchasing property, the Tamil Nadu government ordered the revenue department to catalogue all property owned by the state's Sri Lankan refugees.

Also in June, in response to a Chin refugee's complaint of sexual assault by a local youth at a Janakpuri gift shop, police asked the employer whether the refugee had a work permit, causing the shop to discharge all of its refugee employees.

In July, Delhi police forcibly removed TYC hunger strikers protesting the Beijing Olympics. Police then arrested 86 more who tried to prevent police from reaching the hunger strike tent. Authorities released the protesters in August.

In August, the Madras High Court in Chennai allowed a Sri Lankan refugee who had been present in the country for 18 years to sue the Government for tolerating "hostile and inhuman treatment" and asked for the rights to own property, driving licenses, and bank accounts and access to education. He claimed that, as refugees, Sri Lankans were entitled to "full protection and no discriminatory treatment."

In August, the Calcutta High Court ordered an Afghan refugee to leave India on suspicions that he was engaging in "anti-national" activities by raising funds to help Afghan rebels. The court gave the refugee, who had been in India since 1984 and denied the charge, three weeks to leave the country.

In September, the Young Mizo Association (YMA), an ethnic interest group in Mizoram ordered Chin refugees in the state to leave the country by the end of the month.

Mumbai authorities, citing the November terrorist attacks, did not allow Tibetan refugees to set up stalls in city streets in their annual winter visit to sell traditional Tibetan clothing but refugees claimed they denied them permits even before the attacks. Also in November, police in the city of Pune deported around 100 foreign students for "security reasons," such as overstaying student visas and extending their terms.

In December, the Delhi High Court ordered the Government to obtain a clarification on asylum procedures from UNHCR before it could proceed in the deportation of 67 Pakistani members of the Mehdi Foundation who fled blasphemy charges in their homeland in 2007.

Also in December, without explanation, the Foreigners Regional Registration Office under the Ministry of Home Affairs began requiring refugees to pay a visa fee and a penalty for prior illegal presence in the country to get their residence permits. Refugees from Myanmar, Iran, and Afghanistan, but not Somalia, must all have such a permit once UNHCR recognizes them as refugees.

Law and Policy

Refoulement/Physical Protection

India is not party to the 1951 Convention relating to the Status of Refugees and has no refugee law, but has been a member of UNHCR's Executive Committee since 1996. The Foreigners Act and the 1948 Foreigners Order implementing it govern the country's refugee policy. They allow the Government to make orders "regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein." The Government may also order that any non-citizen of India "shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed." India's Citizenship Amendment Act of 2003 defines all non-citizens who entered without visas as illegal migrants, with no exception for refugees or asylum seekers.

India does grant some Tibetans and Sri Lankans asylum under executive policies, based on strategic, political, and humanitarian grounds, and Bhutanese and Nepalis live in India under friendship treaties. India does not formally recognize UNHCR's grants of refugee status under its mandate but typically does not refoule them either and gives residence permits to some Afghans and Myanmarese mandate refugees.

India allows UNHCR to maintain an office in New Delhi but does not allow it, non-governmental organizations (NGOs), or other humanitarian agencies access to refugees in Mizoram. Refugees wishing to register with the UNHCR must travel to New Delhi to do so. The UNHCR recognizes about 11,300 refugees under its mandate including about 8,400 from Afghanistan, 2,000 from Myanmar; and 900 from other countries.

In 1996 the Supreme Court ruled that guarantees of life and personal liberty in the 1950 Constitution protects refugees from refoulement and, in 2007, the Court affirmed this in the case of an ethnic Armenian Christian resisting return to Iran after his visa expired.

The Citizenship Act of 1955 states that Indian-born Tibetans may be eligible for Indian citizenship. Those born between 1950 and 1987 can become citizens if they were born in India. Those born between 1987 and 2004 are eligible if one of their parents was Indian at the time of their birth. Tibetans born in India later can become Indian citizens only if both parents are Indians or if one is a citizen and the other is not illegal. Nevertheless, fewer than three percent of Tibetans apply.

Detention/Access to Courts

The Government continues to detain 36 Myanmarese refugees it arrested in 1998 after charging them offenses related to weapons smuggling. At their request, authorities transferred them from the Andaman Islands to the Kolkata Jail in West Bengal. India detained other Myanmarese refugees for up to two weeks for lack of documentation. Authorities also detain the above-mentioned Pakistani nationals jailed in 2007 for the burning of their passports as a protest against the Pakistani government.

The National Human Rights Commission can monitor detention facilities, but does not have a mandate specifically to protect refugees and asylum seekers. In New Delhi, UNHCR provides legal aid through an implementing partner.

The Government issues identity documents to Sri Lankan refugees and Tibetan refugees who cannot prove that they arrived before 1979. UNHCR issues certificates to those it recognizes as refugees under its mandate but they are not legal permits recognized by India and do not protect refugees from detention for illegally presence. The Government does not recognize them but often issues residency permits to Afghan and Myanmarese refugees anyway, but to no others. UNHCR issues Under Consideration Certificates to those whose cases it is considering and local authorities generally respect them. In 2008, the Government began penalizing foreigners in India prior to UNHCR recognition, thus denying some residence permits.

The Indian Home Ministry issues residence permits, which must be renewed yearly, to Tibetans who arrived or were born in India prior to 1979. Formerly, permits allowed Tibetans to obtain identity certificates, which were valid for two years and permit international travel. Indian officials in Delhi and Faridabad frequently harass UNHCR-recognized refugees seeking travel clearances and transfers of their residence permits.

The Foreigners Act contains broad powers of detention and makes illegal entry into the country a crime punishable by up to five years in prison, with no exception for refugee or asylum seekers. The Government can administratively detain refugees for lack of documentation. The Constitution prohibits discrimination based on race, religion, place of birth, and other grounds, extends to all persons equality before the law and the equal protection of the law, grants protection of life and liberty, and protects against unlawful detention, and allows detainees access to counsel.

Freedom of Movement and Residence

Local immigration offices impose movement restrictions on some refugees, requiring written permission to travel within specific periods. Refugees possessing UNHCR papers cannot leave New Delhi, as UNHCR's mandate protects them only in the capital. Tibetan refugees may travel within India using their registration certificates, as long as they obtain permission from Indian authorities and check in with local police upon returning. Although since the end of 2006, the Government has restricted Tibetans from receiving international travel documents (and even then limited them to those present since 1979), in some instances, it approves specific requests.

India maintains administrative detention camps in Tamil Nadu for suspected Sri Lankan militants. Other Sri Lankan refugees in Tamil Nadu can move freely in the neighborhoods of the camps, but are under police surveillance and must return for roll calls every evening.

The Constitution reserves to citizens the right to freedom of movement and choice of residence. The Foreigners Act and the 1948 Foreigners Order, give the Government the power to force all foreigners, including refugees and asylum seekers, to "reside in a particular place" to "[impose] any restrictions on [their] movements," and to prosecute criminally anyone aiding or abetting their escape. The Foreigners Order prohibits refugees and asylum seekers from leaving India without permission.

Right to Earn a Livelihood

Even recognized refugees cannot work legally although Nepalese and Bhutanese nationals could do so under friendship treaties and the Government rarely punishes employers formally for hiring refugees illegally. Many refugees work in the informal sector or in highly visible occupations such as street venders where they are subject to police extortion, nonpayment, and exploitation.

Sri Lankans residing in camps may work between 10 a.m. and 6 p.m. In Tamil Nadu, many work to modernize a local railway, but others perform such tasks as bricklaying, laying cable, basket making, and painting. Chin refugees can only work in the informal sector as day laborers, domestic workers, weavers, or tenant farmers. Exploiting this lack of status, employers in Mizoram state frequently withhold payment with impunity.

The Constitution reserves the rights to work, practice professions, join unions, and operate businesses, to citizens.

Refugees cannot legally own land but Tibetan refugees often acquire land with Indians acting as proxies. Refugees and migrants can open bank accounts if they can provide local addresses and an Indian referee.

Public Relief and Education

The State Government of Tamil Nadu government gives registered adult Sri Lankan refugees food subsidies and 800 rupees (about $16) a month. India also affords public relief to Tibetan refugees, but not to others. Refugees under UNHCR's mandate do, however, have access to health care on par with nationals.

Refugee children generally can enroll in local schools. The state and national governments pays for the education of recognized refugees and Tibetans could attend with nationals. Primary and secondary education facilities in the camps for Sri Lankan refugees in Tamil Nadu are reportedly inadequate but the State Government offers five seats for those who manage to graduate in its professional colleges. Mizoram schools require Myanmarese Chin to present documentation such as birth certificates or village residency certificates, which are difficult to obtain, even those born in India. Private schools do not require this but can cost 3,000 to 4,000 rupees (about $66 to $88) per year, which is difficult for refugees, who make about 100 rupees (about $2) a day in the informal sector, to afford.

Tibetans refugees, with their Government issued residence permits, can enroll in public schools anywhere. UNHCR offers refugee children training to help them acquire sufficient proficiency in the local language to attend school. Some refugees in New Delhi under UNHCR's mandate can attend municipal schools and UNHCR reimburses their families for tuition but not other education-related expenses.