ANALYZING THE LEGAL FRAMEWORK ON REFUGEE RIGHTS AND IMMIGRATION POLICIES

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This article is written by Bhavya Mittal of 3^rd Semester of National University of Study And Research In Law, Ranchi

ABSTRACT

It might not be a shock that so many times people have tried to leave their country, the place they have taken birth and grew up. Moving to a different city or village may not be a big issue but moving to a whole new different country, either for a short period or for a long period and even forever. The reason different people are different while seeking refuge in a country. Some do better for their security, some for-work opportunities, and some even for education. People are even forced to leave because of the torture and cruelty done in their own country. The journey they start might be full of hope and future but there is the possibility that it can get dangerous and fearful in the middle. People might get at risk of human trafficking or other exploitation; they can even get detained. While they are getting adjusted, they might face racism or discrimination every day from the local people. This will lead to their isolation as the support we have from our community, relatives are lost to them.[1]

In this article the author has tried to make analyze the legal framework done for the refugees to see if are they safeguarding their rights and understanding the different aspects, the article is divided into an introduction, main body, and conclusion

IT first starts with the introduction which talks about the meaning of refugees and illegal immigrants, it then goes down to how all these are connected with the legal aspect.

The main body covers wider aspects of these, as here we have mentioned all the articles mentioned under UDHR while also defining each of them briefly so that it would be easy to analyze and link them, including the live incidents that happened globally. Not limiting ourselves internationally only we have also included the legal analysis of India about the rights of the refugees and immigrants. After we have even tried to understand the legal analysis of illegal immigrants.

At the last, it ends with a conclusion which is the summary of the whole manuscript.

Keywords-

legal framework, refugee, immigrants, security, illegal immigrants.

INTRODUCTION

The legal framework on refugee rights and immigration policies includes both binding international law and non-legal binding principles. It is common to see refugees being abused and turned into victims because of the restrictive policies of asylum. This reality is although sad bought nothing new, and continues to happen till now. Instead of ignoring it as a regular continuity, it is high time now that refugee protection should be provided through various laws[2]. Protection in layman’s language is defined as respecting the rights of any individual by the law in this case international humanitarian law and refugee law. In short, all the activities and work done for the refugees should include legal protection, casework, and recreational activities. The primary responsibility of the state is to protect its citizen but if the state fails to do so the citizen under the 1951 Geneva Convention which defines refugee has the right to asylum elsewhere. The two main conventions establishing the framework for refugee rights or their protection, like the principle of non-refoulment and the principle of Non-discrimination, are the 1951 Refugee Convention and the 1967 Protocols[3].

The legal rights of the refugee don’t start when they have the legal refugee status but in reality, it starts from the very momentum of time a person reaches the border of a potential asylum country. This is where the legal framework related to the refugee’s rights comes into play which says that no asylum seeker should be returned to their original country or be migrated to a third country where it is visible that their lives will be in danger as every potential person has right to seek asylum. In short non -refoulement includes admission of a person who is an asylum seeker seeking refugee in that country. Article 33 of the Convention of 1951says that No Contracting State shall expel or return (” refouler “) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion[4]. The person when registered with the relevant authority like the UNHCR, registering authority is now responsible towards them and has even been guaranteed that they will not be returned to their country and are staying as the legal person. The refugees get protection through legal procedures and social contracts.

In the Immigration policy state tries to jurisdiction the influx or excess of people to those who want to keep their residence within the boundaries through the regulation and rights of those who want to access the boundary. It gives them the right to work, bring their family members, and acquisition of citizenship. So, immigration policy largely deals with the labour market i.e., work and demographic objectives. Immigration policies are implemented by the government through regulations, laws, and through various programs to manage the flow of migration. For example, countries like Europe issue Blue card which provides a work permit to all people by establishing the condition of entry and residency of third-country nationals for qualified employment. As an initiative, many governments have even started to mix human rights policies in their migration policies. All the rights of migrants internationally are safeguarded under the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,1990[5].

RIGHTS OF REFUGEES AND IMMIGRANTS

The rights levied on the UDHR (Universal Declaration of Human Rights) apply to every human on earth from their birth to death. The refuge and immigrants are protected under the article mentioned in this UDHR and conventions. The rights they get are

Right to get freedom from inhumane treatment and torture -Under the UDHR article 5 talks that no person should be treated inhumanely or tortured and refugees as well as immigrants should be legally protected under this article.
Right to freedom of expression and opinion-Under the UDHR article 2 talks that every person has the right to freely express their opinion irres0pective of their sex, race, birth, religion, or region. So even those who belonged to a different international status of country, political has the right to express themselves without any discrimination.
Right to freedom of religion, thinking, and conscience- Under UDHR article 18 says that every person has the right, including the right to change his /her religion, beliefs, and thinking. No refugee or immigrant can be forced to change his religion, thinking, or belief.
Freedom from discrimination – Under the UDHR article 7 declares equality before the law, where discrimination does come under those which are exclusively for citizens but denying them the necessities and rights to the refugees and immigrants count under the discrimination.
Right to asylum -Under UDHR article 14 says that every person has the right to enjoy asylum in a different country from persecution.
Right to family –

(a) Under UDHR article 16 says that a family is a fundamental group which is needed to be protected by the society and state. it is the right of every person to marry and start a family.

(b) Under Article 23 of UDHR, every person has the right to protection even socially for his family which includes dignity and supplementation[6].

The question might arise are refugee rights important are there some incidents related to this? To answer it here are some of the refugee crisis-

Eritrea– total 501000 refugees i.e., 14% population displaced in 2022 due to political instability and violence.
Sudan – In the year 2022 there were in total of 8,44,000 refugees and it increased to 40,000 in the last year.
The Rohingya crisis – Due to the ongoing violence in the Rakhine state of Myanmar 1.1 Rohingya Muslims fled in August 2017 and started to live in the various refugee camp located near Cox Bazaar, Bangladesh.
Ukraine – A total of 5.4 million refugees i.e., 16 % of the population because of the 2022 humanitarian crisis. A total of 10% of the population has to been displaced due to the conflict[7].

WHAT’S THE INDIA STAND

When looking into India’s situation in the case of refugees and immigrants we can realize the various complexities and a need for perspective while framing the laws for refugees. It is no shock that for centuries India has been home to refugees. We can take incidents from the time when the Zoroastrian community was refugees in India as they were threatened in Iran based on religious grounds. Not all the refugees Indians have got need to be from the neighbouring country as many have been received from different countries. But the ironic thing is that after the partition in 1947, we have not seen single refugees arising from our country’s soil. So, India turned to receiving country believing in increasing diversity and culture[8]. Even though being home to such a large number of refugees it deals with this issue on a bilateral basis as India is not a member of the Refugee Convention of 1951and Protocol of 1967 some of the main legal documents, although India has vacancy of any legislation for the refugee problem in the Indian culture it is the tradition to assimilate the foreign people and culture and that’s the reason India has a great record in protecting the refugees. The constitution of India under Article 21 respects the liberty, life, and dignity of human beings and it also recognizes the right of non -refoulement, Supreme court also said that “while all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life, among others”[9]. India protects the refugees in two ways

Directly registered by the government- They have open access to all the government schemes, Adhaar cards, and Pan cards for their economic and financial welfare
Register under UNHCR- They do not have any access to any governmental documents or welfare schemes and are not able to open any bank account but they have access to assistance and protection.

The current legal framework which protects the right of refugees and immigrants are mentioned under

Foreigners Act, 1946
Passport (Entry into India) Act,1920
Registration of Foreigners Act,1939
Citizenship Act,1955
Citizenship Amendment Act,2019[10]

DO ILLEGAL IMMIGRANTS HAVE THE SAME LEGAL RIGHT

When a person enters another country without any legal method is called an illegal immigrant, it includes mostly undocumented ones. Illegal immigrants although have many problems related to language, housing, and work but they are too afraid to ask for help, and if their identity will be revealed they can easily be deported. In the countries like U.S., there are some provisions for them to fulfil their medical needs but still, most of them are uninsured and have very less access to care. The difficult task to prevent any illegal immigrants is in the hands of the coast guard as thousands of people illegally try to enter through the coastline. But if the illegal migrants are caught before they enter another country’s boundary they can easily be sent back to their original country without any documents or lengthy paperwork or court proceedings. Illegal immigrants are considered law violators as they do not have documents and they are attracted mainly to economic opportunities country, so without any official status as their population started to increase cases like human smuggling also increases and leading to more organized crimes.

In the case of India, the economic condition of it is far better than its neighbouring countries and its, liberal democratic nature attracts people from other countries who are fleeing for a better lifestyle. Illegal immigrants from Afghanistan, Tibet, Myanmar, and Bangladesh found shelter in India. But the problem is that illegal immigrants from these countries especially Bangladesh are not supervised. This has impacted the population of India as well as a threat to India’s security. The Indian parliament passed the Illegal Migrants (Determination by Tribunal) Act in 1983 but that was of no use and it finally was left out by the Supreme Court. India not being part of the United Nations 1951 Convention Relating to the Status of Refugees and 1967 Protocol does not have specific laws about refugees or illegal immigrants but there is the Foreigners Act, 1946 defining foreigners as any person not being an Indian citizen. This act doesn’t differentiate between refugees and illegal immigrants and does not even talk about humanitarian support[11].

RECENT DEVELOPMENTS

The continuity of refugees and immigrants is still in process but it is high time that there should be a change in the existing laws and policies because of the development happening for the past few years. The laws for the refugees and immigrants were drafted decades ago and it is high time now that it should be changed by the expert committee. These laws help in uniformity, legal implementation, and protection. Many reports in recent years like 2020 have been established to revise the laws related to them. various strategies have been done for refugees and immigrants. The first global compact was done inter-government to cover all the refugees and immigrants.

CONCLUSION

Millions of immigrants and refugees have existed in the past years and still, it’s going on. The common reason for these is maybe there is war or threat to their lives. These people leave their own country i.e., their birthplace, work, and sometimes even their families with the minimum basic requirements in their hands and extreme situations they can’t even have the opportunities to carry their requirements, so when they move to different, they see it as a ray of hope to their secure future which they haven’t felt in their own country. In this situation, that country needs to make policies and acts to safeguard their rights in the sense that they are even legally protected. The law protecting them should be updated from time to time as things also change. It is also important for the refugees and migrants to understand the shelter country’s culture, tradition, and language so that they contribute positively to the society they are been included.

[1] Refugees, Asylum Seekers and Migrants, amnesty.org, available at https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/ last seen on 22/7/2023

[2] Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law, Oxford Academic, available at https://academic.oup.com/book/11474/chapter/160184799,last seen on 22/7/2023

[3] What is Refugee Protection? , Human Rights Careers, available at https://www.humanrightscareers.com/magazine/what-is-refugee-protection/#:~:text=The%201951%20Refugee%20Convention%20and,the%20principle%20of%20Non%2Ddiscrimination last seen on 22/7/2023.

[4] Art.33, The Refugee Convention, 1951

[5] Immigration Policy , ScienceDirect, available at https://www.sciencedirect.com/topics/social-sciences/immigrationpolicy#:~:text=Immigration%20policy%20includes%20all%20of,rights%20of%20asylum%20seekers%20and, last seen on 22/7/2023

[6] Rights of migrants and refugees under International Humanitarian Law, iPleaders, available at https://blog.ipleaders.in/rights-of-migrants-and-refugees-under-international-humanitarian-law/, last seen on 22/7/2023

[7] The 10 largest refugee crises to know in 2023, Concern Worldwide us, available at https://concernusa.org/news/largest-refugee-crises/, last seen on 22/7/2023

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