Irrelevance of Status as Illegal Immigrants

Most refugees cross over into other countries illegally, and are unlikely to have the documentation to prove otherwise. The plight of the Rohingya was not very well-known back in 2012 in the international community, so it is no surprise that there weren’t any formal arrangements for them to escape and claim asylum at the time. Furthermore, there has been no attempt to ascertain from these men whether or not they wished to claim asylum and obtain official refugee status – their detention in Silchar made this practically difficult, and the UNHCR has raised concerns that the men were not given legal assistance or asylum counselling. The fact that these men were found to be illegal immigrants doesn’t mean they couldn’t have also been found to be refugees, and the least that could have been done to ensure clarity about their status was to let UNHCR officials speak to the men. The UNHCR says they were refused access by the government, and the apex court didn’t consider allowing this despite being requested in the application argued by Bhushan on Thursday. Just because India doesn’t have a law on refugees doesn’t mean these men couldn’t be found to be refugees.

Rohingya as Myanmar Citizens?

The next reason is far more specious since it relies solely on an affidavit filed by the Ministry of Home Affairs, in particular paragraph 11. This paragraph includes the government’s primary assertions, including that:

The Principle of Non-Refoulement

Moreover, the willingness of Myanmar to take the men back does not in any case make a difference to whether or not it is correct to deport them. India has the authority to deport illegal immigrants, but cannot do so if this violates any binding legal obligations on us. This leads us to the contentious issue of ‘non-refoulement’. Simply put, the principle of non-refoulement in international law says that a country cannot send refugees to a country where their life and freedom would be under threat, because of their race, religion, nationality or social or political opinions.

India’s Non-Refoulement Obligation

As discussed in a previous article in The Quint , India has also had a history of asserting the importance of non-refoulement at the UN, including by Ajit Kumar, Ambassador and Permanent Representative to the UN Offices, Geneva, and Anil Kumar Rai, Counsellor (Humanitarian Affairs) at the Permanent Mission of India to the UN.

No Assessment of Voluntariness

Another disquieting aspect of the way this case went down was that while arguing on Thursday, ASG Tushar Mehta told the court that the seven men were willing to return to Myanmar, something which was also mentioned in the MEA media briefing and has found its way into the media coverage of the deportations.

Is SC’s Rohingya Order Compliant with International Law and the Constitution?

Seven men crossed the border from India into Myanmar on Thursday, 5 October 2018. Escorted by police officers, they shuffled out through the border gates at Moreh, near Imphal, swapping one detention centre for another.

We don’t know what these men expected when they entered India in 2012, but presumably they left their homes and illegally entered a foreign country with the objective of escaping the troubles in their hometown of Kyauk Daw in the Rakhine state, which was one of the places affected by severe communal clashes in 2012.

It is probably safe to assume that they weren’t expecting to be considered criminals and so incarcerated and deported, but that is what they got.

These men were not terrorists. They were not spies. They were not thieves. Nonetheless, they were convicted (correctly) under the Foreigners Act for entering India illegally in 2012. They were sentenced to three months of imprisonment for this, but ended up spending six years in Silchar Central Jail.

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Is SC’s Rohingya Order Compliant with India’s Legal Obligations?

Was the Supreme Court right in allowing the 7 Rohingya men to be deported to Myanmar despite the persecution there?

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Topics: Supreme Court Myanmar Genocide