by Anoushka, Simran, and the IMN Team
With the passage of the controversial Citizenship Amendment Act on 12 December, 2019, Indian refugee policy was given clear shape for the first time in decades. However, the Act has proved polarising, with large sections of civil society and regional governments standing firmly against it. In 2020's first edition of Gotta Keep On Movin', we explore the CAA in the context of immigration and refugee policy in India and around the world.
What is India’s refugee policy?
India is not a signatory to the 1951 United Nations Refugee Convention nor to its subsequent protocols. Legislation such as the CAA, therefore, is the closest thing the country has to a refugee policy.
The CAA is an amendment to India's existing 1951 Citizenship Law which was formulated in the wake of massive waves of cross border migration post-Partition. The amendment fast-tracks the citizenship claims of selected ‘minority’ communities from Pakistan, Bangladesh and Afghanistan who are undocumented or illegal migrants, with December 2014 being the cut-off date of entry. These communities have been identified as Hindu, Sikh, Buddhist, Jain, Parsi and Christian.
India’s independence and subsequent partition in 1947 created millions of refugees at a time when it was struggling to provide even the basic amenities to its own population. At the time, enormous effort went into restructuring and integrating refugees into the nation. In the years following the partition, India has continued to welcome a large number of refugee communities.
In the late 1950s and early 1960s, the Dalai Lama and his followers gained political asylum in India on the grounds of political and religious persecution in Tibet. The Bangladesh War of Independence in 1971 saw millions of refugees cross the border into Indian states bordering Bangladesh. Over the years, this was followed by Tamilian refugees fleeing Sri Lanka due to ethnic violence, and Rohingya refugees fleeing persecution by the Myanmar (Burmese) state. Chakma refugees escaping from Bangladesh to the North-East also received support in the 1970s and 80s.
The lack of a regional framework has led to the development of a unique relationship between the UNHCR and the Indian Government - the UNHCR processes claims for refugee status in India since 1981. This relationship has been maintained by all the political parties who came to power thereafter. The foreign nationals in India are regulated under the Foreigners Act of 1946, the Foreigners Order of 1948, the Passport (Entry of India) Act of 1920, the Passport Act of 1967, and the Registration of Foreigners Act of 1939.
Essentially, India has been taking in refugees and adhering to the principle of non-refoulement (a part of international customary law which mandates that a country accepting refugees shall not return a refugee to a place where his or her life would be threatened) without formalising these actions. Although India is not bound by the Refugee Convention, it is bound by the 1984 Convention Against Torture (signed in 1997) which also contains the principle of non-refoulement. For 73 years now, India has dealt with refugees on a discretionary case by case basis, assisted by the UNHCR.
How have countries around the world dealt with refugee influxes?
Despite being war-torn and in the midst of severe economic crisis, Uganda, in particular, stand out in terms of a comprehensive and welcoming refugee policy.
With a country that bears the brunt of immense political conflict as a neighbour to South Sudan, Uganda has been home to an influx of refugees from the latter. As a signatory to both the 1951 Convention and its 1967 protocol, Uganda has particularly shown consistent interest in protecting its refugees. Over the last two decades, the country has written and rewritten its refugee policy to suit the interests of the migrant population. What particularly stands out in Uganda’s history of refugee policy is the Self-Reliance Strategy (SRS) which sought to shift the discourse around refugees from being a ‘burden’ to being an integral part of the economy through self-sufficiency.
Refugees were granted small plots of land with basic sustenance, which was reduced over time to make them ‘self-sufficient.’ In spite of several drawbacks, this strategy helped thousands of refugees settle in Uganda without interference. Apart from this, the Ugandan government has worked tirelessly towards contributing to the education of refugee children by partnering with civil society organisations.
The world's second largest refugee camp, Bidibidi, home to a quarter of a million people, is in the process of transitioning from a temporary settlement to a permanent city. National Geographic, April 2019.
Meanwhile, Jordan, like India, is a non-signatory to the 1951 Convention. However, its MoU with the UNHCR in 1998 provides a legal framework whereby refugees in Jordan are treated and processed based on this MoU. Under this, the UNHCR will try to resettle the refugee within 6 months of them coming to Jordan. This MoU is the basic framework - an outline for processing the claims of non-Palestinian refugees in Jordan. Jordan’s domestic policy is a general policy for foreigners and not targeted towards refugees and asylum seekers. In 2014, the government released the National Resilience Plan (NRP) to deal with the Syrian refugee crisis and its impact, as Jordan hosts the largest Sryian refugee population after Turkey and Lebanon. Jordan also hosts Palestinian and Iraqi refugees and deals with different refugees under different legal frameworks.
The Migrant Integration Policy Index (MIPEX)
A useful reference tool when thinking about international immigration and/or refugee policy is the Migrant Integration Policy Index. MIPEX uses a rigorous, multi-pronged methodology to measure policies seeking to integrate migrants in over 30 countries. This unique policy analysis tool has 167 carefully curated indicators, spread over 8 policy areas, to evaluate government initiatives in the promotion of migrant integration and development in their respective countries. Some of these indicators include crucial policy points for migrants like access to self-employment or public sector employment, procedure for obtaining nationality, and financial support for the promotion of education, among others.
In the most recent iteration of MIPEX, Sweden ranked at the top with a score of 78 while Turkey ranked the lowest at 25. The India Migration Now team is currently in the process of adding India to the MIPEX evaluation in collaboration with the MIPEX team.
Where does that leave India with the CAA?
As our team wrote in March 2019, the CAA is liable to attack on constitutional grounds. It has come under the scanner for its religious undertone, which is alleged to be in violation of Article 14. It has also been attacked for leaving out countries such as Sri Lanka, Myanmar, and China when refugee communities from the first two (Sri Lankan Tamils, Burmese Rohingya) are already asylum seekers in the country.
The Act is also alleged to violate the conditions of the Assam Accord by bringing the cut-off date from 1971 to 2014, which has been the issue at the heart of the volatile anti-CAA protests of the North-East. Its implications, when read with the anticipated implementation of the National Register of Citizens (NRC), have also been a cause of concern, prompting protests in the rest of the country where the apprehension is that Muslim citizens will be victimised. The Act's relative ambiguity, lacking as it does the term "persecuted minority" or a definition ends up making India's already poorly defined refugee policy even more abstract. For the moment, however, it remains India's only attempt at one.
As cross border mobility becomes an increasingly common reality in all parts of the world, it becomes incumbent on prominent host countries such as India to adopt clear and concise policies with regard to immigrant and refugee communities.
In the past year, the world has taken a collective step in this direction through the signing of the twin Global Compacts on Migration and Refugees. Although non-binding, India played a key role in the drafting of these. The approach enshrined in the Compacts is one of comprehensive, all-round, sustainable monitoring of mobility such that both host and origin countries are able to benefit from migration and re-build from the traumatic scenarios that typically prompt forced migration. Implementing these principles in the formulation of domestic policy can go a long way in ensuring that the key stakeholders - migrants, themselves, - are able to reap the rewards of mobility and contribute to their destination countries.
*The authors are researchers at India Migration Now.