The Peninsula Foundation

Tag: Illegal Immigration

  • India’s Refugee Policy: Implications of an Ambiguous Approach

    India’s Refugee Policy: Implications of an Ambiguous Approach

    Abstract

    This article analyses India’s approaches to refugee issues, their limitations, and the challenges faced by refugee communities due to the absence of a comprehensive, standardised refugee policy framework. With over 200,000 refugees from neighbouring countries and others, India has not ratified the 1951 Refugee Convention and the 1967 Protocol, leading to ad hoc, inconsistent and indirect policy applications through complementary legislation. Due to this, refugee communities face significant barriers in terms of accessing education, employment opportunities, healthcare and welfare facilities, government financial aid schemes and legal provisions and protections, including government identification, leading to deportation and exclusion from Indian society. The Citizenship Amendment Act of 2019, along with the COVID-19 pandemic, complicated these conditions and exposed the dire living conditions of refugees. To address these gaps, the paper offers actionable recommendations, including developing a generalised, human-rights-oriented refugee policy that adheres to international humanitarian standards, establishing an institution for refugee protection, conducting comprehensive data collection, and creating collaborative committees that involve diverse stakeholders to address marginalised refugee groups.

    Background of the Policy Issue

    According to the 1951 United Nations Convention Relating to the Status of Refugees, refugees are defined as person/s residing outside of their national territory/boundary and is unable/unwilling to return to the country of their nationality, owing to conflict, fear and possibility of persecution on account of race, religion, nationality, membership of a group and/or political opinion (UNHCR, n.d.). The convention initially applied to European refugees but was expanded through the 1967 Protocol to cover refugees globally and remove any temporal/geographical limitations. The legality of refugee protection is governed by the 1951 Refugee Convention, the 1967 Protocol, and regional- and host-country-level instruments. The 1951 Refugee Convention and 1967 Protocol are not legally binding, leaving states with the authority and legitimacy to grant refugee status, with UNHCR support through the facilitation of international standards and the maintenance of refugee camps and asylum seeker facilities (UNHCR, n.d.).

    As of 2024, India has a refugee and asylum seeker population of more than 240,000 refugees originating from multiple neighbouring countries, including Sri Lanka, Myanmar, Pakistan, Tibet and Afghanistan (Rajan and Sreekumar, 2024). The country has been regarded as a “haven” for refugees throughout history. Yet it lacks a comprehensive domestic refugee policy for the assistance, regulation, and protection of refugees. India has also chosen not to sign the 1951 Convention and the 1967 Protocol (Khosla, 2022).

    Current Policies and Their Effectiveness

    The Foreigners Act of 1946 and the Indian Passport Act also indirectly influence India’s refugee policy, deeming those entering India without a visa to be illegal immigrants. They do not include specific approaches to refugees.

    The Indian government currently manages refugees, asylum seekers and internally displaced persons through ad hoc, arbitrary and ambiguous legal pathways. By employing a unique dual system which divides the asylum caseload between UNHCR and the government based on regions, India leaves a significant number of people in vulnerable and precarious situations (Vijayaraghavan, 2020). While the UNHCR employs the Refugee Determination System (RSD) for asylum seekers arriving from non-neighbouring countries and Myanmar, those from neighbouring South Asian countries must approach the Ministry of Home Affairs directly, resulting in inconsistent protection (Shankar and Vijayaraghavan, n.d.). The Foreigners Act of 1946 and the Indian Passport Act also indirectly influence India’s refugee policy, deeming those entering India without a visa to be illegal immigrants. They do not include specific approaches to refugees (Borah and Das, 2024).

    Several refugees and asylum seekers lack legal status despite being recognised by UNHCR, with exceedingly limited access to government schemes, health care facilities, education, identity documentation, social integration, and economic development (Vijayaraghavan, 2020). Upon recognition by UNHCR, they are issued identity cards, but these cards are rarely recognised by State governments, leaving them with insufficient protection. They also face difficulties obtaining Aadhaar identification, further restricting access to health and welfare benefits and to public services such as bank accounts (Vijayaraghavan, 2020).

    India has endorsed the 2018 Global Compact on Refugees (GCR), which requires the implementation of RSD mechanisms for the registration and identification of refugees and the just determination of asylum applications (Shankar and Vijayaraghavan, n.d.). However, India has not implemented these processes, leaving the UNHCR to handle applications under its Memorandum of Understanding with the international organisation (Shankar and Vijayaraghavan, n.d.).

    The Citizenship Amendment Act (CAA), introduced in 2019 by the ruling government, sparked widespread agitation due to its religious criteria for Indian citizenship and state protection. By specifically catering to religious minority groups from Afghanistan, Bangladesh and Pakistan, the country’s first direct legislation for the protection of refugees further marginalises specific refugee groups. It restricts access to protection (Shankar and Vijayaraghavan, n.d.).

    The Immigration and Foreigners Act, passed in April 2025, replaces the Foreigners Act, 1946; the Passport (Entry into India) Act, 1920; the Immigration (Carriers’ Liability) Act, 2000; and the Registration of Foreigners Act, 1939. While the Act does not specifically address refugees, it aims to curb illegal immigration into India and prioritise national security. The Act introduces stricter penalties for entry and stay violations by foreigners in the country and authorises Immigration Officers to examine passports and other documents as and when required, to seize them if deemed necessary, and to arrest foreigners without a warrant (Immigration and Foreigners Act, 2025). The Act also allows the Central Government to prohibit, regulate and restrict the entry of foreigners into India if they are deemed a security threat, with no mechanism for appeal. Heavy penalties for violations of the law are introduced, with entry into India without a valid visa or passport resulting in a fine of approximately Rs 5 lakh and up to 5 years’ imprisonment (Immigration and Foreigners Act, 2025).

    In September 2025, however, the Ministry of Home Affairs stated that Sri Lankan Tamil refugees who entered India before 9th January 2015 would be exempt from penal provisions if they did not hold valid travel documents (The Wire, 2025). Therefore, Sri Lankan Tamil refugees who are registered with the government will not be treated as undocumented immigrants. In another order issued in September, the Union home ministry declared that members of minority communities from neighbouring countries, including Pakistan, Afghanistan and Bangladesh, who fled to India before 31st December 2024 to escape religious persecution, will be allowed to stay despite a lack of travel documents (The Wire, 2025).

    Limitations/Gaps

    A significant limitation to adequate protection of refugee communities in India is the severe lack of awareness of existing refugee policies and the UNHCR’s role in recognition and protection. Due to the lack of a generalised refugee policy applicable throughout the country, refugees often hesitate to approach Indian authorities for fear of persecution and deportation, even when undergoing financial discrimination and mistreatment (Shankar and Vijayaraghavan, n.d.). The continued ambiguity in India’s definition of refugees also further complicates the problem.

    The COVID-19 Pandemic and India’s sudden lockdown implementation affected refugees to an extreme degree. The lack of savings and inability to earn income left refugees stranded, a situation further exacerbated by the temporary suspension of UNHCR’s refugee status determination activities (Shankar and Raghavan, 2021). Most refugees live, and continue to live, in unsafe and vulnerable conditions, which enhances the risk of infection and spread of the pandemic among refugee communities. Vaccination drives that provided free testing and vaccination were few and far between, and limited access to public health care facilities and financial aid created significant challenges, leaving refugees dependent on the generosity of their employers and landlords (Shankar and Raghavan, 2021).

    While refining outdated laws and regulations that do not meet contemporary migration requirements is necessary and welcome, significant gaps remain in the Immigration and Foreigners Act 2025. The criteria for deeming a person a security threat have not been established, which could result in unlawful deportation, prohibition, or imprisonment. The Act also does not distinguish between foreigners and refugees, who are often forced to partake in irregular methods of travel and stay in search of safety and security. Many lack the means to obtain visas and passports and may lose their proof of identity during dangerous travel.

    The ambiguity of refugee policy leads to variations in the treatment of different refugee communities, usually determined by contextual and geopolitical factors. For example, while Sri Lankan Tamil refugees in the South can seek employment and government financial aid, the same cannot be said for Rohingya refugees, who are often put in refugee detention camps or deported (Sandhu and Sebastian, 2022). The lack of a policy is addressed through ad hoc measures, often implemented by the police administration, that prioritise surveillance and security over protection and welfare. The recent orders that provide certain exemptions to Sri Lankan Tamil refugees and refugees from neighbouring countries are definitely a step in the right direction, but ultimately bring further complications, especially considering the exclusion of certain communities based on religion. This also allows the ruling government to adapt its governance framework to align with ideological principles. By assigning a religious criterion for Indian citizenship and state protection, the Citizenship Amendment Act of 2019 ensures the marginalisation of select groups of refugees and asylum seekers, bringing into question the secular characteristics of India’s governance (Rajan and Sreekumar, 2024).

    The lack of privacy, haphazard sanitary conditions, poor menstrual management and double surveillance by state authorities and refugee communities sheds light on an intersectionality of issues women refugees face in protracted refugee situations and camp sites

    A significant aspect of refugee discourse is its gendered nature, but it is rarely addressed in policy debates and discussions. Women refugees who make up almost half of the refugee population in India are often solely held accountable for caregiving responsibilities and sustenance of the family, further limiting their access to education, employment and individual development (Malik, 2024). The lack of privacy, haphazard sanitary conditions, poor menstrual management and double surveillance by state authorities and refugee communities sheds light on an intersectionality of issues women refugees face in protracted refugee situations and camp sites (Malik, 2024). While women refugees are beginning to achieve representation in the refugee discourse, refugees from LGBTQIA+ communities and second-generation refugees remain mostly out of the picture. Second-generation refugees who are completely isolated from urban society are further restricted from access to quality education and employment opportunities. More often, they are left stateless and lack access to government recognition and welfare facilities because their parents have not been provided with refugee status (Shankar, 2024).

    Actionable Recommendations

    To address these gaps in refugee regulation, a comprehensive, human-rights-oriented refugee policy that adheres to international standards of refugee protection and implements an RSD process should be introduced to ensure consistent and justified treatment of all refugee groups. Considering past policies and measures implemented for Tibetan refugees, it is evident that policies focused on their integration and protection can have a significant positive impact on their community. Indirect legislation has been invoked to ensure basic constitutional protection for certain groups of refugees, but this is typically done by lower courts that lack the Supreme Court’s jurisdiction (Shankar and Vijayaraghavan, n.d.). Additionally, complementary legislation, while helpful to a certain extent, simply does not address most issues and concerns of refugee communities. The Immigration and Foreigners Act advocates a more hands-on approach to migration management. Still, it does not strike a balance between upholding national security and implementing humanitarian measures and lacks a specified approach to refugees and asylum seekers within the country.

    Collecting accurate data on the statistics of refugees and asylum seekers in India plays a significant role in the development of a domestic refugee policy. Currently, the 2011 Census remains the only eligible data for policy analysis. Adequate data, along with policy directives to protect the humanitarian rights of refugees, need to be prioritised to develop comprehensive policies (Vijayaraghavan, 2020). A leading institution can be responsible for collaboration and coordination across relevant departments to develop an overarching legal framework for refugees, with a specific focus on their social and economic integration, education, employment opportunities, and access to welfare and health care facilities. A specialised committee to address gendered concerns can be formed within the institution, thereby drawing attention to issues affecting women in refugee communities.

    Through overarching approaches across various legal and political channels, a generalised refugee policy aligned with international standards can be implemented, providing refugees with adequate legal protection, security, and opportunities for integration.

    A crucial precursor to the formation of this leading institution and refugee policy is the need for productive discourse among the ruling government, policymakers, experts in the field, and refugees themselves, to prioritise the safety of these vulnerable communities. Through overarching approaches across various legal and political channels, a generalised refugee policy aligned with international standards can be implemented, providing refugees with adequate legal protection, security, and opportunities for integration. Without a well-articulated policy specific to refugees, they will continue to be vulnerable, with limitations to their rights and protection. Therefore, it is imperative to strike a balance between upholding national security and ensuring the dignity and protection of refugees and displaced persons. Recognising international human rights norms in formulating refugee policies in India can help build a comprehensive migration policy framework that addresses the country’s unique refugee challenges.

    Works Cited

    Abbas, R. (2015). Internal migration and citizenship in India. Journal of Ethnic and Migration Studies, 42(1), 150–168. https://doi.org/10.1080/1369183x.2015.1100067

    Borah, D., & Das, B. (2024). India’s Refugee Policy: A Critical Analysis. Library Progress International, 44(3), 9877–9885.

    Immigration and Foreigners Act (2025).

    India Migration Now. (2019). Comments to the draft EMIGRATION BILL, 2019, dated 20 January 2019, released for public consultation by the Ministry of External Affairs (MEA) .https://www.indiamigrationnow.org/wp-content/uploads/2022/02/DraftBill2019_Final_Comments_IMN_19012019.pdf

    Khosla, M. (2022, September 22). The Geopolitics of India’s Refugee Policy • Stimson Center. Stimson Center. https://www.stimson.org/2022/the-geopolitics-of-indias-refugee-policy/

    Malik, A. (2024, August 9). Refugee rights, the gendered nature of displacement. The Hindu. https://www.thehindu.com/opinion/lead/refugee-rights-the-gendered-nature-of-displacement/article68506611.ece

    Rajan, S. I., & Sreekumar, A. (2024). An Overview of India’s Migration Governance Over thePast Decade. https://core.ac.uk/reader/611833180

    Sandhu, K., & Sebastian, M. (2022, August 19). Rohingya and CAA: What is India’s refugee policy? BBC News. https://www.bbc.com/news/world-asia-india-62573446

    Shankar, P. (2024, January 5). India’s stateless babies: How lawless asylum rules leave refugees in limbo. Al Jazeera. https://www.aljazeera.com/features/2024/1/5/stateless-babies-in-northeast-india-refugee-mothers-pray-for-nationhood

    Shankar, R., & Vijayaraghavan, H. (n.d.). Refugee recognition challenges in India – Forced Migration Review. Forced Migration Review. https://www.fmreview.org/recognising-refugees/shanker-vijayaraghavan/

    Shanker, R., & Raghavan, P. (2020). The Invisible Crisis: Refugees and COVID-19 in India. International Journal of Refugee Law, 32(4), 680–684. https://doi.org/10.1093/ijrl/eeab011

    The Wire. (2025, September 4). MHA Exempts Sri Lankan Tamil Refugees Who Came to India Before Jan 9, 2015, From Penal Provisions – The Wire. The Wire. https://thewire.in/rights/mha-exempts-sri-lankan-tamil-refugees-who-came-to-india-before-jan-9-2015-from-penal-provisions

    UNHCR. (n.d.). The 1951 Refugee Convention | UNHCR. UNHCR. https://www.unhcr.org/about-unhcr/overview/1951-refugee-convention

    Vijayaraghavan, H. (2020, September 8). Gaps in India’s Treatment of Refugees and Vulnerable Internal Migrants Are Exposed by the Pandemic. Migrationpolicy.org. https://www.migrationpolicy.org/article/gaps-india-refugees-vulnerable-internal-migrants-pandemic

     

    Feature Image Credit: iisper.org.in

  • India’s Illegal Immigration and Citizenship Issues: Tussle between Politics and Policy

    India’s Illegal Immigration and Citizenship Issues: Tussle between Politics and Policy

    It is indeed difficult to comprehend this Government’s precipitous push for the Citizen Amendment Act (CAA), in the manner that it has, at a time when the economy is on the edge of a precipice and it has yet to satisfactorily resolve serious issues like Kashmir that it has on its plate. True, illegal immigration is of huge concern around the world, and even more so in our case as the issue has been further complicated by the deleterious effects of Partition. However much the young today may wish away the past, we are still bound by it. Regardless of whether one subscribes to the “Two Nation Theory” or not, Pakistan emerged as the homeland for Muslims of the Sub Continent while India came to be regarded as the home for those dispossessed because of their religious affiliations from those areas. 

    One tends to forget that the Preamble to the Constitution, when first adopted, described India as a “Sovereign Democratic Republic” in which “liberty of thought, expression, belief, faith and worship” were guaranteed. Socialism and secularism were only added to our preamble as an afterthought by the Congress Government of Mrs. Gandhi in 1976 through the 42nd Amendment, obviously to gain political advantage and protect her own minority vote bank. In a sense that has now come to haunt us as the BJP proceeds to curry benefit for its Hindutva plank, as the CAA clearly attempts to do, though ostensibly it is aimed at correcting an old wrong.   

    Religious minorities in both countries were given a semblance of relief with the signing of the Nehru-Liaquat Agreement of 1950 that required both countries to protect minorities. While Indian Muslims, among others, continued to enjoy the fruits of democracy in a secular republic, the same could not be said for Pakistan, and subsequently Bangladesh, after its formation. Minorities there continued to be discriminated and persecuted against on religious grounds, forcing lakhs of Hindus and Sikhs to flee across the border. The Government of India’s subsequent refusal to grant citizenship to the fleeing Hindus and Sikhs, as had been publicly promised by both Mahatma Gandhi and the Congress Government in 1947, left them stateless and in penury and was certainly a dark chapter in our history. 

    Subsequently, after 1971, the issue was further complicated as Bangladeshi Muslims too crossed over in an attempt to improve their own economic prospects. It is also an undisputable fact that much of this flow of illegal migrants was aided by Governments then in power in Assam and Bengal that were shortsighted enough to believe that this flood of  illegal immigrants would increase their vote banks and allow them to subvert elections. It is ironical that the very parties involved in this immoral and criminal act are today at the forefront of the Anti CAA protests. While the Nellie Massacre and the Assam Student Agitation brought a halt to this farce in Assam in the early Eighties, it has allegedly continued unabated in Bengal even to this day.

    Politicians, activists and media persons who today question the extent of illegal immigration, especially from Bangladesh, would do well to study the extremely balanced and insightful “Report on Illegal Migration into Assam Submitted to The President” by Lt Gen S K Sinha (Retd), then Governor of Assam, on 8 Nov 1998. As most readers would be aware while the extent of actual illegal immigration into Bengal and other states is not available, anecdotal evidence suggests that it has been extensive and has impacted the social fabric of these States. Indeed, most of those who question attempts to curb or quantify the extent of illegal immigration are being deliberately obtuse and intent on promoting a false narrative motivated more by their bias against the current Government and their need to hide their own involvement in promoting this flood of immigrants. 

    The Assam Accord signed by the Congress under Mr. Rajiv Gandhi in 1985 required a process to be initiated for the “detection and deletion of foreigners.” In this context under the aegis of the Supreme Court action was initiated in Assam to update the National Register of Citizens (NRC) that had been prepared in 1951 by recording particulars of all the persons enumerated during that Census. This update was to include the names of those persons (or their descendants) who appear in the NRC, 1951, or in any of the Electoral Rolls up to the midnight of 24th March, 1971, or in any one of the other admissible documents issued up to then, which would prove their presence in Assam or in any part of India on or before 24th March, 1971. As per Prateek Hajela, State Coordinator of the NRC Project, “A total of 3.1 Crore persons have been found eligible for inclusion in the final NRC list, leaving out 19.,06 Lakh persons including those who did not submit their claims.” They now have the right to file an appeal before Foreigners Tribunals.

    This implies that once the process of appeals is complete, those declared as illegal immigrants, as defined by the Citizenship Act of 1955, will have to be either imprisoned or deported under the Foreigners Act, 1946 or the Passport Act, 1920. However, this has placed the Central Government and the Assam Government on the horns of a dilemma because the vast majority of those who are presently ineligible for inclusion in the NRC are Hindus. Logically speaking, deporting these people would be a gross miscarriage of justice given that they fled their country of origin due to religious persecution. In anticipation of this problem the Government amended the latter two Acts in 2015, thereby exempting Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who had fled to  India before 31 Dec 2014 because of religious persecution, from being deported. A natural corollary to this action would have been to amend the Citizenship Act 1955 to grant citizenship to these groups in an earlier timeframe, rather than the eleven years that the Act otherwise requires. This is exactly what the Government has done with the CAA, 2019. That such an action will also help further its own political agenda is undeniable, but that is exactly how all politicians in power work.

    All of this goes against the interests of the Assamese who view the issue in purely ethnic terms. Their protests, therefore, are against inclusion of Bengalis as citizens regardless of their religious affiliations as they believe that they are being swamped numerically, culturally and linguistically. One fails to understand why the Central Government, which has the benefit of its own party in power in the State, was unable to anticipate the likely consequences of its actions. Obviously, either both the central and state leadership ignored or misunderstood the signs, but whatever be the case the Party has certainly harmed its own cause and faces an uphill battle in regaining popular support. In the context of the rest of the country however, the adverse reaction that this step has drawn is clearly political in nature, initiated by those who fear they will lose out at the hustings because of this.

    The opposition narrative that has been propagated is along two thrust lines. Firstly, it appeals to the liberal secular mindset, which already sees this government as autocratic and fascist in nature, that the CAA is discriminatory, as it leaves out Muslims from those countries, thereby eroding our secular identity, and is therefore unconstitutional. Secondly, it creates a fear psychosis among the minority Muslim population by linking it to the NRC and suggesting that it will be used by this Government to harm their community. The Police by their highhanded behaviour and excessive use of force in dealing with the protests have only reinforced this narrative.

    While it is for the Courts to decide on its constitutionality, prima facie the argument seems to lack substance because the Act is only applicable to non- citizens who are not covered by the provisions of our Constitution and in effect corrects an earlier wrong. Moreover, if legislation is to be treated as unconstitutional purely on the basis that it is discriminatory in nature, then how does one justify existing laws on the subject and is it not time for the uniform civil code to replace all our other such Acts in place? Clearly, for those who ignore these arguments, Bertrand Russell’s belief that “Men are born ignorant not stupid. Education makes them stupid,” appears to have some relevance. 

    With regard to the fears that have brought many of our Muslim brethren to take to the streets, the issues involved appear to be more complex. There can be no two views that the updating of the NRC is a legitimate exercise that every State undertakes to protect its sovereignty. No State can let its ethnic, religious or linguistic profile be overturned by illegal immigration as that will adversely impact society. However, the NRC can also not be used by any government as a tool for harassment. This is unfortunately where this Government loses out because over a period of time its actions have come to be viewed with suspicion by the public at large and specifically by our minority population. There is a huge trust deficit and people tend to be extremely suspicious of its motives. Moreover, now that the Ram Temple issue has been more or less settled, there is the fleeting suspicion that this Government now intends to use NRC to further its Hindutva agenda.  That apart, there have also been numerous occasions on which this community has faced unprovoked attacks, with little being done to assuage their feelings, especially as perpetrators have rarely been brought to justice. It is also a telling comment on their treatment that violence during these ongoing protests has primarily been restricted to states that are run by the BJP. 

    This has allowed the opposition parties to cynically peddle a blatantly false narrative and spin it in a manner that gives it enough credence to coalesce not just minority groups in their favour, but also others who have been distrustful of the way this government functions, with little regard for transparency, dialogue or rule of law. In the meantime the Modi Government has now decided to change tack, put the NRC on the backburner and proceed forward with the updating of the National Population Register (NPR) that only records the list of people in the country, instead. However, this move is also unlikely to be taken kindly since for all intents and purposes, it is a precursor to the NRC and provides relevant data that it can use. 

    The way forward in resolving this contentious situation can hardly be the one that results in further confrontation or adds to the distrust quotient. Mr. Modi would be well advised to take a step back and invite political parties and civil society for a fresh dialogue on all touchy issues. In addition they must look at including appropriate provisions to the guidelines for conduct of NPR/NRC that statutorily ensure that minorities and the poor are not harassed during the process. In any case the Assam NRC process and its final results show that despite our best efforts, deportation of illegals is a very distant possibility. It may therefore be a far better alternative to adopt a more practical and less contentious approach. One such option could be that those identified as foreigners continue to be permitted to remain and work here, without probably being given the right to vote or acquire property. However, their children born here should automatically be made citizens as per existing laws.      

    The author, a military veteran, is Senior Visiting Fellow at The Peninsula Foundation, Chennai and a Consultant at ORF, New Delhi. Views expressed are the author’s own.