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Seeking Refuge in India a Crime? The Rohingya Crimmigration Story

India’s crimmigration policy dehumanises Rohingyas as security threats, subjecting them to detention & deportation.

Updated
Law
9 min read
Rohingya Refugees
i

Sound sleep has become folklore for Minra Begum. For the past two months, she just can’t put her running thoughts to rest, and rest her head without fear. She doesn’t want to lose sight of her three children, two girls and one boy, as they sleep quietly lying next to her. A moment of slumber, just a blink, she believes, might separate her from her children forever.

Minra Begum is haunted by the fate of her aunt Husseina, an 85-year old partially blind woman, who was picked up by the police on 21 January 2021. As Husseina was escorted to a police van by three officers, all men, the plea of her 26-year-old son fell on deaf ears. Minra was aware of her aunt’s destination; after all, that’s where they took her father 11 years ago. But, she still asked, with a quivering voice, “why are you taking her, she’s so old, she has a family... where are you taking her.”

“Don’t interfere, next is your turn,” a member of the police team replied. These words, that warning, resonate like sirens in Minra’s head.

“Each time I hear a police car passing by, each time I hear that siren, my heartbeat rises. I cease to function. I’ve lost my sleep due to this fear, I’ll probably lose my mind.”
Minra Begum
As per data collated from various sources, as of January 2020, a total of 262 Rohingya refugees were kept in detention centres
As per data collated from various sources, as of January 2020, a total of 262 Rohingya refugees were kept in detention centres
(Graphic: Erum Gour/The Quint)

Fault Lines of India's Immigration Law

India does not have a specific law on refugees, asylum seekers, or trafficked migrants. It is also not a signatory to the Refugee Convention of 1951. The immigration law in India is covered under the Passport (Entry Into India) Act, 1920, the Foreigners Act, 1946, and the Registration of Foreigners Rules, 1946.

In effect, Indian law doesn’t differentiate between foreigners coming to India on a visa and asylum seekers escaping persecution in their home countries. This lack of distinction is precisely what allows discrimination and human rights violations of asylum seekers, refugees, and trafficked migrants.

While there is no refugee law, there are standing operating procedures issued by the Ministry of Home Affairs on 29 December 2011, to provide "internal guidelines" for central and state agencies on “how to deal with refugees.” These SOPs are termed ‘Confidential’, are not available in the public domain. The Quint accessed these internal guidelines through an immigration lawyer who was supplied a copy under court orders.

The massive crackdown on Rohingua settlements is taking place in the union territory of Jammu & Kashmir under the “anti-immigrant drive”. 
The massive crackdown on Rohingua settlements is taking place in the union territory of Jammu & Kashmir under the “anti-immigrant drive”. 
(Graphic: Erum Gour/The Quint)

The Standing Operating Procedures allow foreigners “claiming to be refugees” to make a representation before Foreigners Regional Registration Office (FRRO) seeking a Long Term Visa. The FRRO is tasked to collect from the “foreigner” details for leaving the country of origin and any document issued by either a national or international agency such as UNHCR. If the FRRO is of the opinion that there is a “general perceived threat” in the foreigner’s home country, which may subject him to persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, the case will be referred to the Ministry of Home Affairs (MHA).

The MHA considers the FRRO report and consults the Ministry of External Affairs (MEA), on whether to grant a Long Time Visa (LTV) of up to one year to the concerned foreigner. This LTV can be extended annually for up to five years by making an application to the FRRO.

The Standard Operating Procedures clearly state that a refugee holding LTVs is eligible for employment in the private sector and can also study in any academic institution. Further, they cannot be deported without special MHA clearance.
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Guidelines That Remain on Paper

Fazal Abdali, a human rights lawyer in Delhi who has moved multiple constitutional courts espousing the cause of Rohingya refugees, believes that not recognising refugees as a special category of foreigners plagues India’s immigration law and policy.

“Rohingyas are not foreigners who have come to this country as tourists, they are people who were forced to leave their motherland to come to our country for help.”
Fazal Abdali
A large number of elderly people (aged above 65) are detained in Jammu.
A large number of elderly people (aged above 65) are detained in Jammu.
(Graphic: Erum Gour/The Quint)

Abdali says successive governments have done nothing to recognise refugees as a ‘special category’. He says even India's judiciary has shied away from holding that refugees or asylum seekers should not be included within the regulatory and punitive ambit of the Foreigners Act. He told The Quint that even the SOPs of 2011 remain on paper and are mostly overlooked by law enforcement agencies.

“Local administration is often not aware of these SOPs. They don’t inform the refugees about these procedures or the fact that they can apply for Long Term Visas (LTV). Due to this lack of awareness, and the fact that this SOP is not in public domain, most refugees languish in detention centres without even knowing they are entitled to an LTV.”
Fazal Abdali 
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Decoding the "Crimmigration" of Rohingyas

Majority of cases against foreigners, arrested and incarcerated, are for immigration related infractions.
Majority of cases against foreigners, arrested and incarcerated, are for immigration related infractions.
(Graphic: Erum Gour/The Quint)

Scholars have coined the term “crimmigration” to define the intersection of criminal justice and immigration. Under the crimmigration system, tools used for the enforcement of criminal justice are increasingly used in immigration control.

In India, the crimmigration control of Rohingyas plays out as arrests without warrants, prolonged detention in both prisons and detention centres, harsh sentences under provisions that penalise unauthorised immigration, acute surveillance, and severe restrictions on mobility.

The Foreigners Act, which defines a “foreigner” as anyone who is not a “citizen”, underlies India’s crimmigration control policy. Section 14 of the Act provides for punishing immigration-related infractions with imprisonment up to five years and a fine, a degree of punishment at par with serious offences such as attempted robbery under the Indian Penal Code.

The Act was amended in 2004 to widen the penal scope of Section 14, which added new immigration-related offences such as “entry without permit”, “forged passport”, and “abetment to immigration violations” – all punishable with incarceration.

In addition to penalising, the Foreigners Act, the Passport Act, and the Registration of Foreigners Rules, provide unfettered powers to the government to regulate the mobility of immigrants. The law allows the central government to make selective rules for different kinds of non-citizens, as it has in the case of the Citizenship Amendment Act, fostering unequal treatment of migrant groups. Rights activists and several legal experts have pointed out that such discrimination is prohibited in case of citizens under the equal protection clause of Article 14 of the Constitution.

Moreover, unlike in the case of citizens, the central government can pass any order on non-citizens without Parliamentary approval or oversight. This power has been consistently used by the government to discriminate among different migrant groups with impunity, to serve their political interests. For instance, while the government has recognised Buddhist and Hindu refugees from Tibet and Sri Lanka respectively as “special categories”, the same benefit is not extended to the Muslims fleeing due to persecution in Myanmar or the terror of Boko Haram in Nigeria.

The immigration law rests on the principle that when it comes to non-citizens, the central government can exercise unbridled sovereign power. This is reflected in Section 3 of the Foreigners Act, which allows the government to pass any order on any category of foreigners controlling and monitoring their mobility through:

  • Restriction of non-citizens’ entry and exit
  • Limitations on the right to remain in specific areas of India
  • Voluntary or involuntary removal to such areas
  • The control of non-citizens’ freedom of movement within the country
  • The provision of recording fingerprints and handwriting samples, and conducting invasive medical examinations
  • Limitations on freedom of association and the ability to engage in certain activities
  • Restrictions on the possession of specific articles. This would include confiscating the valuables of immigrants to fund the deportation process.
While the law provides for preventive detention of foreigners, it doesn’t prescribe an upper limit for the duration of such detention. Perpetuating the culture of secrecy, the law also allows the government to limit public or media access to the places where foreigners are detained.
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For Rohingya Refugees, the Process is the Punishment

Usman, who is Minra Begum’s neighbour in Delhi’s Rohingya refugee settlement in Kalindi Kunj, is seen as a “leader” by the community. He is the one who negotiates with the local police, tries to derive information on those lost in the deportation process, and attempts to provide supplies to the ones in detention centres.

Seeking Refuge in India a Crime? The Rohingya Crimmigration Story
(Graphic: Erum Gour/The Quint)
“There have been attacks on our settlement. Some unidentified people threw fire-bottles, setting some of the houses on fire. Since, there is no one to protect us, take care of us, we become our own watchmen. I stay up all night to guard the settlement.”
Usman

Usman believes that the cycle of surprise police raids, heightened police patrolling, and the recent rise in arrests have subjected the community to lingering trauma. Employment has become precarious, parents are too scared to let their children step out of the house. “If you’re gone, you never know whether you’ll ever return,” the community feels.

Minra Begum believes that while she has spent almost a decade in India as a refugee, the fear of forcible deportation looms large now more than ever. She thinks that even possessing a Long Term Visa won’t come to her rescue if she’s “caught in the web of detention.”

In August 2017, the BJP-led central government took a drastic draconian stance on Rohingya refugees. While describing all Rohingya immigrants as “grave security challenges” and “vulnerable to terror recruitments,” the MHA directed all law enforcement agencies to promptly identify Rohingya immigrants, monitor their activities, and initiate the deportation process.
“By that notification, Rohingya refugees became criminals overnight, despite living peacefully in the country since 2009.”
Fazal Abdali

The 2017 notification granted wide powers to the local police and Border Security Force (BSF) to arrest, detain, and deport any Rohingya immigrant. The central government gave no reason for classifying all Rohingya refugees as potential terrorists or security threats, or for depriving them of the benefit of Long Term Visa.

“We’re not terrorists. Rather, we are here to escape a country troubled by criminal activities. We’ve been continuously sharing all our information with the government, we will continue to do so. We can even relocate. We don’t want to own any property. We just want a safe life for our children.”
Usman
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Mere Existence is Resistance

Noor Sehra is among the many pregnant Rohingya women kept in detention centres despite having a valid UNHCR refugee card.
Noor Sehra is among the many pregnant Rohingya women kept in detention centres despite having a valid UNHCR refugee card.
(Graphic: Erum Gour/The Quint)

Noor Sehra, one of the Rohingya refugees detained from the Bentalab settlement in Jammu, is carrying another life inside her. Sehra is one of the many pregnant women who are languishing in detention centres and prisons without having any idea about when they will be granted liberty.

Due process protections provided to citizens under India’s criminal law, are not similarly extended to non-citizens subjected to crimmigration control. They are not informed of the reasons for arrest. There have been incidents of women being arrested post sunset and by male police officers. They are not produced before a judicial magistrate within 24 hours of detention, and are kept in indeterminate preventive detention without timely judicial oversight.

Abdali informed The Quint that many Rohingya refugees are kept in prison even after the completion of their sentence under the Foreigners Act under the pretext of preventive detention. While on paper legal aid is allowed, lawyers are heavily restricted from helping out or even meeting the detainees.

“In a reply submitted before the court in a public interest litigation filed by me, the government revealed that Rohingya refugees are kept in preventive detention under the Public Safety Act till the time their “deportation is sorted out”. This amounts to treating Rohingya refugees as heinous criminals till they are deported.”
Fazal Abdali

The principle of “non-refoulment”, which prohibits sending the asylum seekers or refugees back to a place where they have a threat of persecution, is a part of customary international law, which makes it binding on all sovereign states. However, India, which is not a signatory to the Refugee Convention, has often bypassed the principle of non-refoulment under the garb of “national security”. Between 2005 and 2008, more than 90 percent of all deportees from India were returned to its eastern neighbour Bangladesh, after tagging them as “illegal infiltrators”.

It is under this vague umbrella of “national security” that the central government bypasses its own immigration policy and arbitrarily subjects Rohingya refugees, who are Muslims, to the draconian crimmigration system.

Sehra is one those many persons who are incarcerated in detention camps despite having a valid refugee card from the UNHCR. This is a sheer violation of the government’s own SOPs.

Minra Begum vividly remembers the violence and loss that forced her to look for a safer land. In her home country Myanmar, the military confiscated their property and forced her mother into bonded labour. Subsequently, even as the family fled to Bangladesh, she was confronted with insecurity again, when her father was abducted.

Minra never made peace with her father’s disappearance, but it was the urge to provide a safer home for her children that forced her to move again – this time to India. She came here in 2009, and amidst all the restrictions, stigma and surveillance, she built a humble life for her family.

After a decade, as the BJP-led government fanned insecurity about the Rohingya refugees, by labelling them 'security threats', Minra Begum again finds herself gripped by that familiar insecurity. But this time, she is resilient.

“I have felt this fear before, I think I can survive it. But I will continue to struggle as I don’t want my children to face the same fear. I hope they get to live without this fear.”
Minra Begum 

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