ASSESSING THE LEGAL FRAMEWORK FOR PROTECTING THE RIGHTS OF REFUGEES AND ASYLUM SEEKERS

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This article is written by Anjali of 6^th Semester of Chaudhary Charan Singh University, Ghaziabad, an intern under Legal Vidhiya

Abstract

When situation beyond the control, people fleeing due to persecution and violation of human rights to foreign country from the thousands of years in the search of better and safe life. Security of refugee is a matter concern and country like India, is quite generous for refugees in the past. Where these people are not protected in their own country than international community step in to protect and safe guard them. This article explain law with provide to refugee and asylum seekers. Those who successful their claim is refugee whereas asylum seeker cannot successful their claim.

Keywords

National Security, refugee, Human Rights, Constitution of India, UNHCR, universal declaration of human rights, judiciary

Introduction

Due to India’s friendliness, democratic governance and diversity in religion it become top asylum seekers and refugee country. India becomes home for all the asylum seekers and refugee belong to any religion and sects. India ensure refugee get financial and economic status like any other citizen of India by directly registered to government such as refugee of Sri Lanka who are entitle to Aadhar and Pan card. India does not have any specific law and in the absence of these law other law like criminal procedure code, Indian penal code and constitution of India apply to the refugee.

Country obliged to protect and provide resources to refugee and asylum seekers who sign 1951 convention as per international standard. At present UNHCR’s main focus on providing respect and standard of treatment regarding access to asylum procedure and detention. In the last few years, Canada, Australia, Sweden and Norway have received most of the refugee for resettlement in relation to their population.

Refugees

When any person prosecuted or fear prosecution due to race, religion, nationality, political opinion is fled outside the country of his nationality.

According to international law and principle of family unity, children and descendants of refugee were also considered refugee.

A person must go through a refugee status determination process of government of hosting country on the basis of international regional or national law.

Asylum Seekers

Asylum seekers left their country due to violation of rights and prosecution to other country but they haven’t been legally recognized by the other country and is waiting to receive a decision on their asylum claim.

These are an inviolable refugee. Until they receive a decision from government, they are asylum seeker. When An asylum seeker gets permanent asylum, he may become a refugee.

Legal implication for protection of refugee and asylum seekers

Whereas for refugee and asylum seekers, India had always been kind and receiving them during any war or religion crisis in their own country. India has not any specific law and policy for the protection of refugees and asylum seekers but there are few acts in which legal frame work is provided for them:

Fundamental rights of Indian constitution which are also provided to the noncitizen also,

Article 14 provide equality of person before any law and equal protection of law with in the territory of India,

Article 20 protect the rights of the convicted person. Any person cannot be punished more than provided in the law,

Article 21 state that no person shall be deprived of his life and personal liberty except according to procedure established by law,

Article 21A right to elementary education of children between the age group of six to fourteen years,

Article 22 states that the person must be informed about his detention or arrest in the custody and provide protection in certain arrest,

Article 23 prohibit human trafficking or any kind of forced labor whereas article 24 prohibit employment of child in factories, mine or in any other hazardous activity who are below the age of fourteen years and any contravention of these provision shall be punishable according to law,

Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all,

Article 26 manage religious affair freely,

Article 27 freedom from paying any taxes for the promotion of any particular religion

Article 28 freedom for attending any religious worship or instruction in any educational institution,

These rights are provided in article 32 of Indian Constitution. All citizen whether refugee, asylum seekers or citizen of India these articles applicable to all and enforceable by court of law.

India has neither sign 1951 refugee convention nor its 1967 protocol. Also due to lack of law for their protection refugee and asylum seeker may suffer in India but constitution of India respects the life, liberty and dignity of refugee and asylum seekers.

Case law

National Human Rights Commission V. state of Arunachal Pradesh (1996)

It was a public interest litigation were Chakmas displaced in 1964 from East Pakistan (Bangladesh) and later on they apply for citizenship under section 5(1)(a) of the citizenship act, 1955

Judgement – the Chakmas shall not be evicted from their homes and shall be denied domestic life and comfort therein.

Role of law and judiciary in India

Judiciary play an important role for the protection of refugee and asylum seekers but sometime they may be not an economic threat but a security threat to the country. Certain law of India provide security to the country along with protection to the refugee and asylum seekers:

Citizenship Act, 1955
Extradition Act, 1962
Foreigners Act, 1946
Illegal Migrant (Determination by Tribunals) Act, 1983
India Penal Code Act, 1860
Passport (Entry into India) Act, 1920
Passport Act, 1967
Protection of Human Rights Act, 1993
Registration of Foreigners Act, 1939

Judiciary gave many landmark judgements related to the protection of the refugee. Majid Ahmed Abdul Majid Mohd Jad Al Hak v. Union of India in which basic need like food, medicine and shelter must be provided to the refugee.

Even through refugee and asylum seekers are considered weaker section in country still there is no sperate laws for them. According to the study, whereas refugee and asylum seekers feel safe in India.

UNHCR assistance for refugee and asylum seekers

When any status is required or for living in the asylum country the refugee may contact UNHCR. For territorial asylum and international treaty obligations laws are also provided by UN agency. If the legal framework and law are unable to provide basic human rights then the refugees are supported by UNHCR.

Refugee and asylum seekers get identity card to get the policy benefit,
Cash intervention used by UNHCR to meet the daily requirement of food, water, healthcare and shelter that provide basic livelihood,
Provide health benefit program like HIV, reproductive health and vaccine distribution during the covid-19,
Mandate biometric database of refugee which help in elimination of waste and fraud,
It provides primary safeguard and well-being of the refugee and asylum seekers,
UNHCR has major mission to assist and provide service to IDP (internally displaced person), refugee and asylum seekers in camp and urban areas in their own country,
Introduced new program to increase the awareness of the issue face by refugee around the world,
Long term skill development program conducted to give better livelihood and provide opportunity of elementary education for the children and secondary or higher education for refugee and asylum seekers themselves,

International refugee law and human rights

1951 convention and 1967 protocol are the main aspects of the international refugee law.

1951 convention related to the status of refugee

There are 146 parties to the convention during 20 January 2020. In the convention treats are formed between the parties which are binding in force and perform in good faith by the parties. Countries under treaty are obligated to protect refugee and asylum seekers in their territory as per the rule and regulation.

Refugee require to comply with law of contracting state.

If the provision is not complained than there is no formal procedure to file an complain by an individual but usually no nation has done that. If nation doesn’t comply then face public shaming through press and declare such act awful by the UN.

1967 protocol relating to the status of refugee

Under protocol, states are required to provide information and statistical data to the officer of the high commission or agency of the United nation that are condition of the refugee, implementation of protocol and law, regulation and decree which are in force for refugee.

Temporal and geographic restrictions both are removed by 1967 protocol.

Universal declaration of human rights for refugee and asylum seekers

No refugee shall be held slavery or in trade of slavery by the hosting country which is considered as an inhuman activity.
Article 5 of UDHR prohibit being cruel, inhuman, torture or punishment. Prosecutors have no right to conduct activity which are violation of human rights.
Any member of the UN is entitled to provide asylum to the refugee and asylum seekers under article 14.

Along with this there are basic rights which are provided to all human beings apart from refugee and asylum seekers.

Rights which need to be protected by the international agency

Right to movement

Protocol and 1951 convention provide right to choose the place of residence and move freely within the territory of the hosting country. But sometime encampment for refugee and asylum seekers by the hosting, restrict them in isolated environment which effect on their social-economical ability and their health also.

Right to basic facility

For proper health and social welfare of refugee and asylum seekers they need basic facility. If there is a large group of refugees in the hosting country then it could be difficult to provide basic facility to them. Refugee can also lack of facility due to poverty and marginalization.

Right to education

Education help refugee and asylum seekers to prepare for their future. 1951 convention provide provision for right to elementary education.

In India, the RTE (Right of Children to Free and Compulsory Education) act 2009 provide free and compulsory education to all the children whether they below to migrant workers, of 6-14 years age.

Right to employment

Chapter 3 of the convention pertain the employment of refugee. For becoming self-reliant, he needs to access to labor market. It helps refugee to become an independent and contribute in community and economy of hosting country. If the receiving country provide law which restrict foreigners from employment to protect their own labor, then it does not apply to refugee.

Right to family life and family unity

Family reunification right need to be provided in the hosting country because they cannot return to countries of origin to enjoy such family life. The process of reunification takes longer time due to length of the asylum procedure for the principal applicant and resettlement of the family thereafter.

Some countries are unable to provide proper resources and material during the process of family unity.

Right to nondiscrimination

Any discrimination on the basis of national minority is restricted by international law. Article 3 of 1951 convention provide non discrimination against them in the hosting country. Non discrimination is a major principle of the United Nation agencies that are followed by all the states.

Right to non- refoulement

Under this right refugee and asylum seekers cannot be forcibly return and expel from hosting country to their country of origin in which poses a threat to their life and freedom. But there is certain exception in which hosting country may allow refugee to return to their country origin.

In 2021, in Mohammad Sali mullah V. Union of India, the supreme court permit deportation of Rohingya Muslim refugee back to Myanmar.

Conclusion

At present due to war or economic crisis, people are displaced around the world. To provide protection and care to these refugee and asylum seekers, all the international agency and hosting country need to work together. Provision must be draft to provide temporary identity card for basic needs by the government.

India is not a signatory of 1951 convention or 1967 protocol despite this it is a signatory of universal declaration of human rights which protect the rights of all person whether citizen or non-citizen of country. Indian judiciary need to enact law to ensure fair dealing without any discrimination and provide status to the refugee.

References