This month, December 2020, marks one year since the Citizenship Amendment Bill’s (CAB) enactment. The amendment changed immigration law provisions, declaring that a person who enters India from select countries without valid documents, or exceeds the permissible stay period, will not be declared an ‘illegal migrant’ unless he/she is a Muslim. It also allows these foreign nationals to become citizens if they have ‘resided’ in India for 5 years, rather than the 12-year-period under naturalisation laws. All this for the sake of ‘persecution’.
Here I will discuss how the international order looks at asylum claims and thus, how the Indian government’s ‘persecutory’ logic is flawed – even by its own nationalistic standards.
Who Can Qualify As A ‘Lawful’, ‘Credible’ Refugee?
The Refugee Convention 1951 answers who is a refugee, what rights he is entitled to, and when his status comes to an end. Simply, an asylum seeker (one who only makes a claim of persecution) does not automatically become a refugee and a refugee does not become a citizen.
To first become a refugee, he must show credibility – prove the reasons why he has fled his own country and deserves protection outside, and a well-founded fear – that the reasons which prompted his movement in the first place still persists and if he were to return to his country, his life would be at risk or he would be subjected to torture.
Additionally, he must show that he cannot be expected to relocate elsewhere in his own country. These criteria are established through a Refugee Status Determination (RSD) procedure.
Once he establishes that he is a refugee, he is afforded rights on the basis of the time he has spent in the host country. The time variable explains the ‘link’ between this person and the host country. At first, he is an asylum seeker with merely a physical presence in the host country. If he enters with valid papers or goes to the RSD mechanism to claim a refugee status, he is lawfully present up to the time of determination of this claim.
In case he is truly found to be a refugee, he is entitled to a lawful stay.
The certification is like a residence permit. If it is found that the asylum claim itself was false, or that he can still return to his country, his presence turns unlawful.
The final stage is one of ‘habitual’/’durable’ residence. For this, he must have stayed in the host country for considerable time (usually around 5 years) – such that his current residence appears to him like a home and return to his own country becomes unlikely in the near future because the persecutory reasons continue there.
Stringent Naturalisation Laws
Since the individual remains the national of another state, (a) he is not entitled to refugee status if his claims are false, (b) even if he does become a refugee, he does not become a citizen. Refugee status is temporary and it is expected that once situations improve in the home country, these individuals will return.
As a simple analogy, consider how even permanent residents are not citizens – they do not enjoy the unqualified right to enter and reside in the territory.
Citizenship rights are reserved for only those who can establish a “real and effective link” with a country and indicate the last step into integration in the new country.
Simply put, the grant of the highest right – that allows one to enter, reside, move freely, enjoy fundamental rights and social protection – is subject to the most exacting requirements which are often reflected in the country’s naturalisation laws. These include ‘habitual residence’, business links, participation in public affairs, etc.
Logically one cannot demand less for the acquisition of nationality as compared to that required for the acquisition of a residence. Granting citizenship to foreign nationals arbitrarily also disrespects the principles of state sovereignty and territorial integrity.
Can A Refugee Never Become A Citizen Of India?
This is not to say that refugees can never become citizens. The Convention does provide for ‘assimilation’ where they stay back since the situation in their own country has not shown any improvements – but in that case, they must go through the process of naturalisation like any other immigrant. This, however, is a last resort option.
The SC has also explained that the refugee status is one granted purely out of humanitarian considerations and no amount of stay would confer citizenship upon these foreign nationals.
However, they could always opt for an ‘efficacious remedy’ through naturalisation. There are some exceptions of course; cases where a child born would otherwise be stateless, or where individuals were earlier forcibly deported from the country, or who were part of a single territory that underwent separation (an India-Pakistan situation under Article 6 of the Constitution). As another example, German laws allow for a privileged acquisition of citizenship to those who had fled in the 1950s. But this is not applicable to those second and third-generation Germans who don’t share the same ‘effective’ links.
But what the CAA does is that, it legalises entry and residence of an asylum seeker purely on the basis of religious considerations and without any verification of persecutory claims.
It further goes on to grant them citizenship without even examining the degree of integration of the asylum seeker (without showing habitual residence).
India Govt’s Flawed Logic – And A Breach Of Duty Towards Our Own Citizens
This refutes the government’s own ideology which believes that Indian citizenship must be reserved for the select few. The law provides no further recourse over challenging the naturalisation of those falsely seeking benefits under the Convention definition within its territory, solely by showing their religion.
On the contrary, it is possible that the host state’s actions (India) constitute a breach of duty owed towards its own citizens.
There is some literature available on how preference to one community over the other, despite equal residence periods and deserving protection needs could lead to feelings of resentment and confrontations. Like India, Turkey initially sought to confer mass refugee status upon fleeing Syrians, over common Muslim identities. However, the Syrian refugees never integrated in the society, and the Turkish population was left feeling disenfranchised.
Perhaps these examples could finally ring alarm bells amongst policy makers and those supporting the CAA.
(Ishita Chakrabarty is a legal researcher based in Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)