Reflections on the Refugee

The Ceuta episode this year, when thousands of Moroccans arrived by land and sea in Ceuta, a Spanish enclave bordering Morocco in North Africa, drew sharp reactions from a number of countries to what they perceived as Spain’s non-conformist ultra-liberal migration policy. To an annoyed European Union, (EU), it mattered little that they were all signatories to UNRC, (the UN’s 1951 Refugee Convention) and its 1967 Protocol and that their own nationals had benefited hugely from this when migrating to the USA and UK during the Cold War era.

The prevailing consensus remains however that ‘refugees’ are distinguished from other migrants by a common distinguishing factor. Ousted from their homeland by the vicissitudes of war, oppression, or threats to life and liberty and sometimes even the bare necessities for sustenance, their initial journey from home to ‘host’ country is never voluntary. The partition of a unified India at the end of British rule, which provoked the greatest cross-border movement of populations the world has ever known, saw many think that they would be back one day, perhaps fairly soon. Again, a survey of refugees from the Syrian Civil War showed an overwhelming 80% of them expressing a long term hope of returning home. Refugees often want to return but being able to do so is a very different kettle of fish.

The UNRC defines the term ‘refugee’ and outlines his rights and the treatment he should receive from the ‘host’ country’s governmental authorities, including the pre-conditions for his repatriation. On the ground however, many refugees report experiencing substantial difficulties relating to their living conditions, employment opportunities and even free movement within the ‘host’ country, as also with securing access to essential services like health and education. When it comes to repatriation, the UNRC, drawing from the French word ‘refouler’, meaning ‘to turn back’ or ‘to expel’, lays down the ‘principle of nonrefoulement’; (PNR). The PNR prohibits the return of refugees to territories where their life or freedom is threatened or where they may face torture. This PNR generally applies as customary international law irrespective of whether the ‘host’ involved is a signatory to the UNRC or not. Where the human rights law on torture is invoked, even the narrow exception made for persons considered a threat to the security or citizenry of the ‘host’ country disappears. Effectively, in almost all cases, the PNR becomes a ‘jus cogens’; (a peremptory norm), which brooks no exception, but again, the real world is oftentimes very different.

During the Cold War years, the Western democracies remained tolerant, even welcoming of refugees, especially where they were seen as ‘people like us’ and therefore deserving of sympathy. European and Jewish diaspora, already present in significant numbers in the USA and UK, provided a strong ‘pull’ factor in favour of refugees from Europe sharing a common lingual, racial, or religious identity. The spirit of the times prompted the Western European nations, the UK and the countries comprising the present EU among them, to sign the 1951 UNRC and its subsequent 1967 protocol. The USA, which did not sign the Convention, signed its subsequent 1967 protocol, thus joining the system.

During the Cold War era, with theatres of conflict moving away from Europe into the Middle East, Africa and Asia, a growing number of refugees who were not ‘people like us’ started arriving on Western shores. Now however, the earlier tolerant and welcoming mood was noticeably lacking as the Western signatories of the UNRC grew increasingly reluctant to accommodate the growing number of ‘strangers’ with different racial, lingual, religious and cultural backgrounds in their midst. From the 1970s onwards, the Western ‘host’ nations, despite their formal affiliation to the UNRC system, began to impose a series of tighter legislative measures aimed at stemming ‘immigrant’ flow and then, repatriating more and more of those who turned up through increased use of the detention-prosecution-deportation route.

The UNHCR, (United Nations High Commissioner for Refugees), the guardian of the UNRC, has protested against many such dispensations, but to no avail. Thus UK’s 2023 Illegal Migration Act classifies the arrival of refugees who transit through countries where they may not directly face persecution as ‘irregular’ and mandates a ‘duty to remove’ all such arrivals. The EU Regulation on Returns 2026 not only expands the use of pre-removal detention but also outsources so-called ‘return hubs’ to third countries for deportation. A recent news vlog reports that the USA is contemplating a system of ‘continuous vetting’ under which post-visa applications for asylum are prima-facie presumed to be fraudulent!

India, though not a UNRC signatory, has consistently been following PNR norms. After the trauma of ‘Partition’, we have seen refugee influx from Tibet, (1959), the Indo-Pakistan Wars of 1965 and 1971 and the Sri Lankan Civil War (1983-2009), apart from intermittent ‘minority group’ migrations from Pakistan, Bangladesh and Myanmar. While the vast majority of the nearly 10 million refugees of the 1971 War and around 18000 Sri Lankan refugees have returned home, MHA reported that by end 2020, around 72000 Tibetan and 59000 Sri Lankan refugees still remained in India.

India has no distinct legislation dealing comprehensively with refugees and except for sporadic attempts such as the Citizenship (Amendment) Act 2019, which provides an expedited path to Indian citizenship for non-Muslim religious minorities from Afghanistan, Pakistan and Bangladesh, no relaxed residency requirements for naturalisation of migrants as Indian citizens. The area is therefore governed by judicial rulings and executive orders under the Foreigners Act read with relevant provisions of the Passports Act, the Citizenship Act and the Bharatiya Nyaya Sanhita (BNS). A primary concern of those advocating defined refugee rights and welfare is that the ‘law of limitations’ does not apply to the deportation of ‘illegals’ under the Foreigners or the Citizenship Acts. This results in the spectre of refugees ‘disappearing’ into the general citizenry and facing the uncertainties and dangers of ‘push-back’ into neighbouring countries on detection. Very recently, the Gauhati High Court ordered a Rs.2 lakhs interim compensation for the deportation of one Begum to Bangladesh after a Foreigners’ Tribunal declared her a ‘foreigner’ despite her having produced voter list records of her grandfather and father and a school certificate with her date of birth. When this happens with prima-facie citizens, whether refugee rights to ‘due process’ are being observed falls open to question. Even as an affluent West returns to a ‘don’t bring me your problems, I have plenty of my own’ attitude, for a nation wedded to “Vasudhaiva Kutumbakam”, (the world is one family), a comprehensive and humane refugee law remains an immediate necessity..

THE VIEWS EXPRESSED BY THE AUTHOR ARE PERSONAL

Anirban Mukhopadhaya, Retd. IAS officer