Sahana Basavapatna

[Lawyer, New Delhi]

The question of a legal framework for refugee care in South Asia has long occupied academics, activists and lawyers in the South Asian sub-continent. While the discussion and debates in the highest circles have lead to very little in terms of a tangible legal framework, a number of developments, within the South Asian sub-continent have equally lead to or is very likely to lead to far reaching changes in the way refugees, asylum seekers, stateless persons and “illegal” immigrants are viewed, cared for and managed. Some of these include the UNHCR’s Urban Refugee Policy of 2009 that will have far reaching implications in the possibilities it offers and the limitations in its application in countries in South Asia, the Unique Identity Project, now renamed as “Aadhar” in India, and some other lesser known executive orders that impact refugees on a daily basis.

Yet, the combination of the absence of refugee law, ad-hoc administrative policies and diversity among refugees provides a veritable landscape to understand why such a law is yet to be passed by Parliaments in South Asia, what dictates such an ad-hoc policy, the space available for refugee groups protect themselves by remaining “illegal” and yet deal on a constant basis with the inadequacies in the law.

Towards this end, this edition of Refugee Watch Online brings together diverse contributions, significant news articles and legal developments which reflect the complexities of forced migration in South Asia.

While 2011 was marked by commemorating the 60th anniversary of the UN Convention relating to the Status of Refugees (July 28) and the 50th anniversary of the Convention on the Reduction of Statelessness (August 30), as the contributions in the May edition of Refugee Watch Online show, there was not much by the way to celebrate for refugees. While one appreciates that the international refugee protection regime has withstood the test of time, politics and contexts, for a large number of people on the run, these instruments of protection have not alleviated their situation.

The first contribution in the May edition is a short note written by Somali refugees protesting before UNHCR in Delhi in the second week of May 2011, reiterating their concerns that for a large number of Somalis in India, much has remained the same, in terms of protection. Pertinent to mention in this context, is that the demands of the Somalis is unfortunately not new. The Somali refugees in Delhi continue to face insecurity and lack of protection, despite some of them living in India for over a decade. This protest is yet another reminder that Somalis, like the African refugee community, remains a forgotten people, in India.

The second contribution is an article titled “Untangling Nepal-China ties: The politics of Tibetan refugees in Nepal” written by Boris Markhampa and Susan Appleyard and is an analysis of the treatment of Tibetan nationals seeking asylum in Nepal in the context of Nepal – China relationship. It seeks to show how the Tibetan community in exile in Nepal has been used as a bargaining chip in Nepal’s relations with China and what the ramification of this unstated policy for Tibetan nationals have been.

The third article is a contribution by Prof. Tricia Redeker Hepner, Associate Professor of Anthropology at the University of Tennesee that focuses on how migration from Eritrea in contemporary times needs to be understood in the context of the existing regime of refugee protection. In making clear links between the political situation in Eritria and the exodus of a large number of people who see migration to the “West” as the only way to find a way out of the political turmoil, Prof. Redeker Hepner calls into question the effectiveness of the refugee protection mechanism. RWO has taken permission to re-publish this article, which was initially published in Counter Punch on April 22, 2011. This seemed to us to be an apt article for this edition, given that it makes very pertinent observations about the forced migration policy and its inability to deal with questions relating to protection of refugees. Prof. Redeker Hepner notes in conclusion that through the Eritrean example, she seeks to “illustrate the complexity and global scope of human rights dilemmas that structure refugees’ lives, and the failures of institutions, policies and laws designed to manage them as technical problems rather than protect them as human beings”. It cannot be gainsaid that South Asia offers adequate examples of this complexity and therefore the uniqueness of forced migration in the sub-continent needs to be studied for the answers it may provide for better understanding of the phenomenon.

Followers of developments in forced migration in South Asia would be aware of around 64 Pakistani citizens who protested in Jantar Mantar, in New Delhi in 2008 by burning their passports and claimed refugee status in India for fear of persecution on religious grounds. The Pakistani nationals belong to the Mehdi Foundation International, the followers of which have reportedly been persecuted for their religious beliefs. The Pakistani nationals approached the judicial system in India and filed a Writ Petition seeking directions from the Delhi High Court that their application for asylum be taken up by the Government of India. In November 2009/January 2010, the Government of India rejected their application for refugee status and by an order dated December 2010, the Division Bench of the Delhi High Court, headed by the Hon’ble Chief Justice Deepak Mishra directed that UNHCR process the applications and until the UNHCR decides the applications, none of the asylum seekers be deported. The Order of the Delhi High Court dated December 2, 2010 is reproduced in this edition and a few remarks may be made in giving a context to this case. The December 2010 order is illustrative of the number of aspects of refugee protection and processes that is significant to India. This case follows many others decisions where the Judiciary has shown consideration to refugees arriving in India, in the absence of which, refugees normally find themselves confronting the government which oftentimes makes arbitrary and ad-hoc decisions. Having been rejected refugee status by the Government of India in November 2009, the Pakistani Nationals sought directions that they be allowed to apply to UNHCR for refugee status. The Court observed that this should be allowed, given that the Government of India rejected refugee status by a non-speaking and general order “passed in violation of principles of natural justice”. Applications were subsequently made to UNHCR, who has granted them refugee status. However, the 64 Pakistani nationals will be resettled in the next three months as they do not have the right to live in India as refugees. While the settlement to a third country is processed, RWO is informed that any assistance for the 19 women, 11 children and the elderly among the 64 individuals would be appreciated.

In the section on News, two news articles are reproduced in keeping with the theme of this edition. The first news clipping is about Assamese of Chinese origin, who face a unique situation in India. Chinese nationals who originally were brought to work in the tea plantations in Assam at the beginning of the 18th century eventually settled down in Assam and married local Assamese residents. The Sino-Indian war of 1962 lead to a large number of these people were arrested and sent off to a camp in Deoli, Rajasthan, from where they were eventually deported to China. One of the few people who has conducted extensive research on this issue is Dr. Rita Chowdhury, an Assamese author and the recipient of the Sahitya Academy Award. RWO intends to follow up on this issue in the forthcoming editions of RWO.

The second news article, in contrast to the first, information that is now too common in the mainstream media and yet, in the context of the law – or the lack of it and the historical connections of India with its neighbours, telling of how borders make people with an identity in law. This news article talks about Ramesh Gayen and many others like him, who “don’t have any sort of recognition even after living in a country for over 40 years are not “qualified enough” to discuss politics”. The context for this news article is the recently concluded Assembly elections in West Bengal. The article states that people like Gayen who migrated from Bangladesh in the 1970s are “yet to be recognized as refugees or granted citizenship”. That India’s obsession with the Bangladeshi immigration and “infiltration” is alive is reflected yet again in the experiences of people like Gayen who continue to be non-citizens in the nations imagination.

The section on Reports includes a summary report of a workshop and a conference held in March 2011.

A workshop on Borders and Forced Migration was jointly organized by the Centre for Refugee Studies, Department of International Relations, Jadavpur University and the Calcutta Research Group on March 29, 2011 and focused on statelessness, migration due to resource crisis and the ramifications of forced migration on women. A conference titled “Protection of Refugees and Stateless Persons in India and her Neighbours” was organized by The Other Media in Delhi on March 30th and 31st 2011. It sought to examine the status of refugees in India in the context of the existing legal regime – both national and international. Both the forums, interestingly, focused, among other issues, on the question of statelessness and the risks, dangers and dilemmas that people face in falling under the category of “stateless” in India.

The May edition of RWO ends with an announcement of the Koshish contest, currently being organized by UNHCR in Delhi, under the “Do 1 thing for Refugees” as part of the commemoration of World Refugee Day, in June 2011.

We hope you enjoy reading this edition of RWO. Please feel free to send us comments, critiques or get in touch at refugeewatchonline@gmail.com