Some refugee groups in India, notably, the Burmese, Afghans and Iranians, can be said to be recognized by the Government as they provide for acquiring of the same on formally being recognized by the Office of the United Nations High Commissioner for Refugees (UNHCR). For reasons still unkown, and perhaps telling of the Government's ad-hoc approach to refugees, other refugee groups do not possess these permits, such as for example, the Somalis.
This article intends to give an overview of the Residence Permit policy, the changes that have been made in the recent past and in doing so, understand the confusion with the Government circles on this matter and the consequences this has for refugees and the larger constitutional provisions that claim to protect refugees.
Procedure to be followed by a Refugee to Apply for Residence Permit
According to the Ministry of Home Affairs (as per information received in response to the RTI application to the Ministry of Home Affairs dated 23 March 2009), the procedure for obtaining residence permits applicable to foreigners is also applicable to refugees recognized by UNHCR. In case of refugees, the procedure of acquiring Residence Permits (which are issued under Rule 6 of the Registration of Foreigners Rules, 1992) involves application to the Foreigners Regional Registration Office on the basis of a letter issued by the Ministry of Home Affairs together with submission of identity documents such as Residence Proof, Identity Proof and a Police Clearance Certificate. In the past, no fee was charged to the refugee either during a fresh application for RP or during renewals.
Until December 2008, when this policy is believed to have been implemented, recognized refugees did not have to pay any "visa fee" or "penalty fee" to acquire a fresh Residence Permit. In case of a foreigner, the visa fee depends on the length of stay of the foreigner and the class of visa the individual possesses. The penalty fee is calculated as the difference between the date of entry of the foreigner in India and the date of making the application before the concerned FRRO. Thus, while refugees did not have to pay either the visa or the penalty fee, since December 2008, they would have do so. For a large number of people who have recently been recognized as refugees, this has meant the practical impossibility of holding a valid permit during their stay in India.
The Advantages of Refugees Holding a Residence Permit
The residence permit constitutes recognition of the “refugee” by the government and is a legal document that extends essential protection to the refugees and protects them from harassment. It also enables them to avail of assistance and protection in India under the laws. Given that there is no refugee management policy or law in India, this is a positive step and a recognition of refugees' distinct status in India. Seen from this perspective, the applying of this fee without notification or offering a reasoning has an adverse effect on the refugees' legal status and protection and is also a violation of Constitutional Law as well as International Human Rights Law.
The sudden change in the policy is detrimental to the refugees as they are unable to pay the large sums of money for the Permits to be granted. As a party to the International Human Rights instruments such as the Universal Declaration of Human Rights, 1948 (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR), India is obliged to honour the principle of non-refoulement. In India, this has been translated into the domestic law where in numerous cases the Supreme Court of India has upheld this principle under Article 21 of the Constitution, notably NHRC vs State of Arunachal Pradesh (1996 SCC 742) and Dr. Malavika Karlekar vs. Union of India (criminal) (1992). A comprehensive reading from the above indicates that refugees are a distinct category where the general rule may not apply As persons who seek the protection from the Indian Government, it is not fair to ask refugees to pay for the same.
Ramifications of the Policy on Refugees in Delhi
In this overall scenario, the Government of India's policy of imposing the "visa fee" and "penalty fee" does not help a large number of refugees as most of them do not have the economic means to pay this fee. Further, this decision to implement the fee as part of the legal regime amounts to virtually withdrawing the protection available to them. Further, levying of a “visa fee” and a “penalty fee” on a distinct category of individuals who arrived in India seeking the protection of the Government of India defeats the very purpose of granting them the “protection”.
The imposing of this fee also needs to be seen from the perspective of the undue delay in the Refugee Status Determination by UNHCR in India. In recent times, refugees who approach UNHCR for registration are given an appointment that is approximately 6 months from the date of approaching UNHCR and another year from the date of registration for the interview in the first instance. Thus, in most cases, refugees are forced to wait for nearly one and a half to two years before applying for Residence Permits, which is granted only to a recognized refugee.
Confusion still prevails, with the inability of the bureaucracy to explain clearly the reasons for introducing this policy after years of not imposing a fee on refugees. On the other hand, this could be a simple case of Government ad-hocism and the culture of not finding it necessary to explain its own position.
It however needs to be clear as to the objective of the Government in introducing this policy and undertanding its effectiveness. While this only means that a large number of refugees are unable to get the Permits, it is not clear as to what the Government seeks to achieve. This is clear also from FRRO which seems to just implement the policy, with no clarity as to why this is being done now and why not earlier. While the debate still goes on, on whether it is best to have a legislation in India or a different way in which forced migration may be understood, managed and regulated, what is clear is that such a confusion will not exist were India to adopt and pass a Refugee law.