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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Refugee Law

WHO IS REFUGEE?

Is every person living in a foreign country be termed that or is a person who with the fear of persecution or war has been forced to leave their own country? Well the legal definition of the term refugee has been mentioned in the UN Convention, 1951 on the status of refugees. 79.5 million people around the globe has been displaced by force and this number is considered highest since World War II.

 Now there is a huge difference between the word migrant and refugee, and that is CHOICE. A migrant is a person who himself chooses to move from one place to another but in case of a refugee, he is forced. Refugees are bound to leave home as it is no more safe to reside there. The difference between the two is an important one, as certain rights of the refugees have been highlighted by the international convention of 1951 but there is no such rights for the migrants. India is neither a party of the Refugee Convection ,1951 nor does it have any refugee protection guidelines. It eventually does help in providing large number of asylums for numerous refugees from the neighboring countries. To cope up with absence of a proper administrative frame works through the United Nations High Commissioner for refugees (UNHCR) conducts refugee status determination (R&D) for the asylum’s seekers from the neighboring countries. India abides the principle of non-refoulement and brings protection to the refugees under the broad understanding of Article 21 of the constitution.

 WHY IS INDIA NOT A PART OF REFUGEE CONVENTION, 1951?

‌After the independence of India Jawaharlal Nehru chose not to sign the refugee convention of 1951 and believed that it might bring in unnecessary international criticism and interference in things which were to be considered as an internal matter. India did not want its sovereignty to be threatened by the international community. India moreover refused to sign the 1976 protocol which included 140 signatories and was welcomed by the world’s 190 odd Nations. One of the major reasons why India didn’t sign the convention was because of the lack of proper infrastructure to deal with such situations. Due to the absence of proper framework India realize on the Foreigner Act, 1986. Section 2 of this act defines a foreigner as a person who is not a citizen henceforth all the refugees fall under the category of the foreigner. A proper economy and backbone of a country is very vital in such scenarios. Providing a shelter for refugees not only required proper infrastructures but also brings a hike in the population. India, despite not being a member of the convention still provides a home to diverse group of refugees being from the Buddhist Chakma’s, Bhutanese, Muslim Rohingyas two small populations from Somalia, Sudan and others sub Saharan African countries. Another reason offered by the Indian scholars is that India retains a degree of skepticism about the UNHCR. India has its own population more than a billion and is still a developing country and do not have the enough resources to take care of refugees and hence it is not a fair idea to see India as a permanent place of safety for refugees.

 Even though India is not a part of the refugee convention of 1951, it still follows certain articles laid down by it. They are:

1. Article 7 – provides all refugees the same treatment as all aliens

2. Article 3 – no discrimination

3. Article 3A – penalty imposed on illegal entry

4. Article 4 – own choice of religion

5. Article 16 – move to the courts if the rights are violated

6. Article 21 – freedom of housing (refugees do not need to stay in camps)

7. Article 27 and 28 – provide the refugees with identity and travel cards

8. Article 33 – provides the principle of non-refoulement

    WHAT IS UNHCR??

‌UNHCR (United Nations HIGH COMMISSIONER FOR REFUGEES) is a United Nations body whose objective is to protect the refugees who were forcefully displaced from the states or communities and to resettle them in a third country. UNHCR was established in the year 1950 after the consequences of the World War II. The UNHCR complies with the government and several NGOs to make sure that the refugees are provided with proper health, education and legal aid facilities and also provide help to stateless person, asylum seekers and IDP.

v IDP

An IDP (intentionally displaced person) is a person who is forced to leave their homes but is never allowed to cross the international borders. The camp around places in nearby towns settlements and even forest and fields. This group generally includes people struck by natural disasters or internal strife and do not receive any protection by the international law or any type of foreign aid as they are placed directly under the protection of their own government. Columbia, Syria, Yemen and democratic republic of Congo at the largest with IDP’s

v STATELESS PERSON

 Anyone who is not a citizen of any country can be termed as a stateless person. In order to declare a person stateless, it is very important to analyze how a state applies its nationality law and practice to individual cases and then determine the decision that is made.

v ASYLUM SEEKER

People who believe their own country and seek shelter in another country apply for the Asylum where he or she can receive legal protection and material assistance. UNHCR strives to overcome the barriers such that the refugees and Asylum seekers get the advantage of public health and educational services.

 PROBLEMS FACED BY REFUGEES

1.     ‌Low paid employment – The major problem the refugees is the lack of documentation which in turn creates a long fight to secure jobs. 60% of the refugees live in urban areas where men try to find construction jobs or market related jobs. The women also have a right to work and move freely but they feel isolated as they are not of the same community.

      Child labor – Child labor among refugees and Asylum seekers is one of the most common things. They do not have any supporting pillar to fight for them or establish rules for the safety and protection of minors. There are no laws to govern the problems faced by the refugees.

     Low standard of living – There is always a gender-based violence among to strangers for sharing the living space due to the accommodation costs. There have been reports stating that the camps which were provided for the refugee’s are in pathetic conditions and also got flooded in the rain. Women couldn’t go out and children got bitten by snake. Woman face a lot of physical abuse and harassment not only at the workplace it but also at the rental houses where they asked for favors by the house owners.

      Severe health issues – Due to poor living conditions such as camps with poor shelter and sudden change in the lifestyle such as adequate food water there are high chances of health problems and mental stress. They lack proper medical facilities and healthcare. Another reason for facing challenges in accessing healthcare is the language barriers, legal status and discrimination.

 CONSTITUTIONAL PROTECTION TO REFUGEES

1. Article 14 : guarantees equality before law and equal protection of the law. This is applicable to all the people residing in India and does not distinguish or choke the rights of equality as everyone is considered equal in the eyes of law.

2. Article 21 : article 21 secures two rights:

a. Right to life

b. Right to personal liberty

Right to life is considered to be the most important fundamental of all rights as it completely depends on the pre-existence of life itself. It would have been impossible for the creation of another fundamental right without mentioning article 21 in its original sense.

3. Article 20 : it deals with ex-post facto law, the right against double jeopardy and right against self-incrimination.

4. Article 22 : this article states that no person shall be detained in custody without being informed. He shall also not be denied the right to concerned or be defended by a legal practitioner of his choice. This right shall not be applicable only to alien enemies and person arrest under preventive law detention.

5. Article 25 – 28 : it provides the right of freedom of conscience and the free will to practice or propagate any religion.

6. Article 32 : any person on Indian grounds who feels that his fundamental rights have been violated have the right to move to the Supreme Court for enforcement.

7. Article 51 (c) : the state shall endeavor to harbor respect for international law and treaty obligation in the dealings of organized people with one another.

 COVID-19 AS AN INVISIBLE CRISIS FOR REFUGEES

The covid-19 crisis forced India to recognize the problems faced by the refugees. All these past year’s millions of workers have moved from state to state to country to country in search of a proper livelihood. In the prescribed contexts it is believed that this group can be directly affected by the virus as they are never static at one place and they do have to move from one place to another in search, of jobs settlement and livelihood. People fail to realize the major role played by the migrants and refugees of our country as they are the ones who help the economy to be born. The migrant population of our country is 30%. The pandemic has affected everyone globally but the effects on refugees are on an edge. India has more than 200000 refugees who live in the urbans of the country. As per report the lockdown in India has impacted the livelihood of a huge population of the countries for around 40 million internal migrants. India has proposed a complete lockdown to curb the growing adversities of the covid-19 virus. This has deeply impacted to those people who earn daily wages and have no savings for essential goods. Moreover, the suspension of UNHCR refugee status determination during the lockdown has affected the people who are seeking shelter in asylums as they are still pending and some have not even been registered. The most vital concern is the lack of proper medical facilities especially for pregnant women and elderly who are in dire need right now. Even though health care access is allowed to the refugees, the hospitals are currently overburdened with the pandemic cases to take up other non-corona virus related cases. There has been no extension of the benefit of free covid-19 testing to the refugees by the government. To limit the overcrowding in correctional homes of prisons the Supreme Court has decided to organize committee to determine whether any person who is on trial, prisoner all illegal migrants including refugees wrongfully detained could be released. There is also a lack of financial aid to refugee committee and a struggling to cope up with the situation. They do not have facilities like a proper stable job or for any financial system to lend them money. Had they been given proper treatment in the country; the pathetic scenario of the refugee wouldn’t have arrived. Presently the UNHCR and its partners have started taking measures to raise awareness about the covid-19 scenario; it still lacks proper allowances and assistance. It is the duty of the government to make face masks available to all the refugee communities in and around the country and to provide them with proper knowledge and guidance and precautionary measure to understand the scenario. There should be also free testing at private labs provided as refugees are incredibly wonderful population who needs protection from the government. The pandemic highlighted the poor governance and also called for an urgent need for global cooperation and long-term investments.

CONCLUSION

India is the largest democratic country in the world with various diverse culture and tradition which do not want any outside interference affecting its internal matters. The incoming of refugees affect the political stability and is often used as vote bank by politicians. The main aim is not for the self-benefit but is to provide them with proper livelihood and security. It was definitely challenging for the Indian government to overcome the kilometers of the partition of the country in 1947 but now being in the 2020 is it is right tool for the country to establish proper laws for the refugees because they leave their home countries to take shelter on another land and it is definitely not blooming where they have to live in a constant fear of abuse exploitation and discrimination. India has undoubtedly tried to welcome the refugees of the other countries with wide arms open but has failed terribly in providing them safety and security. The refugee lacks proper documentation and therefore there is a scope of menial jobs where they are constant victims of discrimination and suffer from numerous physical abuses and assaults. They are the targets of exploitation and unscrupulous employers who try to use them for their own benefits, the refugees given no choice give in to their demands out of the fear of arrest, deportation or harassment by the authorities. It is vital that a constant check to be imposed and hence the UNHCR with several other NGOs have started lots of programs to stand as their pillar for financial problems. A private member bill has been introduced by Mr. Shashi Tharoor for the Asylum seekers which is expected to bring out benefits for the refugees. Even though the country has not enacted a special law to govern refugees, it has not been proved to be a serious handicap in coping satisfactory with the enormous problems that the refugees face. It is vital that a separate refugee law should be enacted by the country to cope up with the unseen problems faced by them.

 

Ref:

https://www.unhcr.org/

https://www.livemint.com/Opinion/bePZQScFIq1wEWv9Tqt4QO/Why-India-wont-sign-Refugee-Treaty.html

https://epimonia.com/blogs/news/challenges-refugees-face

https://www.lawteacher.ne

Image Credits

 This blog is authored by Reshmi Bhattacharjee

 

 



 

 

 







 

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