India

Not Available

Immigration detainees

2019

Not Available

Detained children

2017

7,593

New asylum applications

2019

195,103

Refugees

2019

5,154,737

International migrants

2019

Overview

Types of facilities used for migration-related detention
Administrative Ad Hoc Criminal Unknown

04 May 2021

Rohingya Refugees Along with their Luggage outside a Mosque in Jammu, Kashmir (J. Singh, EPA,
Rohingya Refugees Along with their Luggage outside a Mosque in Jammu, Kashmir (J. Singh, EPA, "India Detains Rohingya Refugees and Threatens to Deport them to Myanmar," The Guardian, 8 March 2021, https://www.theguardian.com/world/2021/mar/08/india-detains-rohingya-refugees-and-threatens-to-deport-them-to-myanmar)

As a second wave of COVID-19 has swept across India, infection and death rates have skyrocketed across the country. On 1 May, some 392,488 new cases were reported--the largest one-day increase on record for any country--as well as 3,689 deaths, although observers suggest that real figures may be significantly higher.

Despite COVID rates surging since March, authorities have continued to arrest and detain non-nationals. In early March, an estimated 170 Rohingya refugees were detained in the city of Jammu (Kashmir), after police conducted raids in camps and summoned others to a “verification” exercise. Placed in a “holding centre” in Hiranagar (the Hiranagar Jail, which was reportedly converted into an immigration detention facility that same month), the group were subsequently informed of plans to deport them to Myanmar. Despite several Rohingya refugees challenging the deportation order, on 8 April the Supreme Court rejected an application to stay the deportation of the group, even as violent unrest in Myanmar surged following the 1 February coup. During the hearing, the Chief Justice of India (CJI) commented, “Possibly that is the fear that if they go back to Myanmar, they will be slaughtered. But we cannot control all that. . . We are not called upon to condemn or condone genocide.” The court also accepted the government’s claim that Rohingya refugees constitute a threat to internal security, while also failing to consider the applicability of non-refoulement. Members of the Rohingya community have called the decision a “death warrant.” (To-date, the GDP has been unable to confirm whether the planned deportation has been conducted.)

This case is part of a wider set of restrictions targeting Muslim communities in India since the Modi government came to power in 2014. In 2017, local BJP leaders in Jammu launched a campaign demanding the expulsion of all Rohingya from the region. In West Bengal, where elections are currently being held, the BJP has vowed to deport all Rohingya if the party wins.

Elsewhere in Assam, authorities have been detaining purported “illegal foreigners” (largely Bengali-speaking Muslims) in six detention centres. As previously reported on this platform, in April 2020 the country’s supreme court called for the release of people who had been detained for more than two years--and if they were able to produce two sureties worth 5000 rupees (approximately 53.33 GBP). However, as one observer commented, the court’s decision was not influenced by the dangers posed by COVID to detained populations, “Instead the reasoning implicitly belies the punitive motivation behind detention, by basing release on the amount of time ‘served’.”


21 May 2020

In mid-April, India’s Supreme Court directed the government to release “illegal foreigners” detained in Assam for more than two years in order to avoid overcrowding (India Today, https://www.indiatoday.in/india/story/coronavirus-sc-orders-release-of-illegal-foreigners-in-assam-detained-for-2-years-to-avoid-overcrowding-1666633-2020-04-13)
In mid-April, India’s Supreme Court directed the government to release “illegal foreigners” detained in Assam for more than two years in order to avoid overcrowding (India Today, https://www.indiatoday.in/india/story/coronavirus-sc-orders-release-of-illegal-foreigners-in-assam-detained-for-2-years-to-avoid-overcrowding-1666633-2020-04-13)

In mid-April, India’s Supreme Court directed the government to release “illegal foreigners” detained in Assam for more than two years in order to avoid overcrowding.

Assam has become a hotspot for immigration detention in India, as scholar Sujata Ramachandran reported in a 2019 Working Paper for the Global Detention Project: “The country’s detention and deportation policies have begun to receive widespread international attention in the wake of a recent crackdown on purported “illegal” residents in the Indian state of Assam, which is located in the far northeastern corner of the country. Sharing borders with Bhutan, Bangladesh, Myanmar, and a few other small Indian states, Assam is connected to the rest of the Indian mainland only by a narrow strip of land. Here, the process of identifying and removing ‘irregular Bangladeshis’ has gained considerable momentum as the state updates its ‘National Registry of Citizens,’ which threatens millions of Assam residents with imminent statelessness, in particular Bengali-speaking Muslims who have been targeted as part of a Bharatiya Janata Party (BJP)-led campaign against Muslim-majority and Bengali-speaking Bangladeshis, including many who were born in India but lack documentation.” (For more on detention in Assam during the pandemic, see our 10 April update.)

Indian law does not distinguish between refugees and illegal immigrants and the central government grants asylum and provides assistance only for certain refugee populations. India is nonetheless host to a large population of refugees and the Government allows UNHCR recognised refugees to apply for visas.

The country has set up quarantine facilities for those returning from abroad. However, it has been reported that these facilities have poor hygiene levels and limited access to healthcare. People who arrived at New Delhi airport in March reported that after being screened at the airport, they were loaded into a bus packed with other passengers who had travelled from abroad and sent to an isolation facility in Dwarka. In that facility, more than 40 people were held with only three washrooms and three bedrooms. Similar reports arose from quarantine facilities in Kashmir where around 1,800 people were placed in similar facilities. One person who was quarantined in Kashmir stated that authorities had not provided them with liquid soaps and sanitisers and that they were forced to use a dirty washroom.

People detained in prisons, correctional homes, or immigration detention centres are at high risk owing to the closed setting and proximity in common living space. In India, this risk was acknowledged by the Supreme Court on 16 March: “The bitter truth is that our prisons are overcrowded, making it difficult for prisoners to maintain social distancing. … like any other viral diseases susceptibility of Covid-19 is greater in over-crowded places, mass gatherings, etc. Studies indicate that contagious viruses like Covid-19 proliferate in closed spaces such as prisons. Studies also suggest that prison inmates are highly prone to contagious viruses. The rate of ingress and egress in prisons is very high, especially since persons (accused, convicts, detenues etc.) are brought to the prison on a daily basis. Apart from them, several correctional officers and other prison staff enter the prison regularly, and so do visitors (kith and kin of prisoners) and lawyers. Therefore there is a high risk of transmission of Covid-19 virus to the prison inmates… we are of the opinion that there is an imminent need to take steps on an urgent basis to prevent contagion of Covid-19 virus in our prisons.”

On 11 May 2020, the National Commission for women announced that more than 1,700 women on remand had been released since 25 March. On the next day, the High Power Committee appointed for the emergency release on parole or bail of prison inmates, decided to release around 17,000 out of 35,239 prisoners from prisons in the state of Maharashtra. In the whole of India, 61,100 prisoners have been released. However, these releases have not necessarily included detained foreign nationals - rising numbers of whom are being held in Indian prisons. In the state of Odisha for example, where almost one thousand prison inmates have been released, the group of persons denied release include those convicted for rape and sexual offences, and foreign nationals. Similar guidelines are also in place in Jammu and Kashmir.

As of 19 May 2020, 388 positive cases of Covid-19 have been identified among prisoners and three prisoners have died from the disease.


10 April 2020

Goalpara Detention Centre is one of Assam's six detention centres, and currently confines nearly 370 people declared as
Goalpara Detention Centre is one of Assam's six detention centres, and currently confines nearly 370 people declared as "illegal immigrants," Al Jazeera (https://www.aljazeera.com/news/2020/04/india-fears-coronavirus-outbreak-assam-detention-centres-200408075603980.html)

In the Indian state of Assam, more than 800 persons are being held indefinitely in six detention centres within prisons. Defined by Indian authorities as “foreigners,” these detainees - many of whom are Indian citizens who have been declared “illegal immigrants” by the Foreigners Tribunal on account of poor documentation or poor legal assistance and lack of resources - are forced to live in overcrowded facilities that lack appropriate medical and sanitary facilities. Since 2016, 29 detainees have died due to various ailments - ten of them between 1 March 2019 and 20 February 2020.

On 23 March, India’s Supreme Court ordered all states to release “convicts and undertrials [remand prisoners] awaiting trial for offences entailing a maximum sentence of seven years.” While Assam state took steps to release over 700 prisoners, no such steps seem to have been taken to release or protect detained “declared foreigners”. Speaking to Al Jazeera, the deputy commissioner of Assam’s Sonitpur district stated, “We have stopped taking in new inmates. Everyone is being screened by the doctors on a regular basis and there does not seem to be any such possibility of a virus outbreak.” However, reports from detainees’ families suggest otherwise: according to the daughter of one detainee, at least 50 people are kept in one room.

Some families have sought to secure bail for detainees, but with courts suspending operations in March, there is uncertainty regarding options. On 7 April, the country’s Supreme Court heard a petition filed by a detainee in Assam, which sought the release of people who have spent more than two years in detention. The court also heard pleas by the Justice and Liberty Initiative (JLI), which urged authorities to extend the prisoner release to declared foreigners. Further hearings are scheduled for 13 April. “As human beings, they also have at least basic human rights to live and not to die of COVID-19 in the precincts of a prison, which has despicable living conditions,” said a JLI advocate.

Concerns have also been raised concerning persons confined in India’s network of prisons, where measures such as the cancellation of visits prompted some prisoners to riot. Although some have been released since the Supreme Court’s order on 23 March, others remain in facilities renowned for their poor living conditions. Foreigners are amongst those detained inside Indian prisons, however the GDP has not been able to determine whether they were amongst those released. Arundhati Roy, Professor Gilbert Achcar, and other leading intellectual figures signed an appeal urging for authorities to release political prisoners, who were not included in the 23 March order. They note that many persons who have been arbitrarily detained have been in prison for years awaiting trial and, as a result of prolonged confinement, suffer from a wide array of health conditions which leave them particularly vulnerable to the virus. Similar concerns could be expressed for immigration detainees, many of whom have been subjected to lengthy detention.


Last updated:

ENFORCEMENT DATA

Total Migration Detainees: Flow + Stock (year)
Not Available
2019
Total Number of Children Placed in Immigration Detention (Year)
Not Available
2017
Criminal Prison Population (Year)
419,623
2015
385,135
2012
372,296
2011
376,969
2009
376,396
2007
358,368
2005
326,519
2003
313,635
2001
281,380
1999
Percentage of Foreign Prisoners (Year)
1.5
2015
1.7
2012
Prison Population Rate (per 100,000 of National Population)
33
2015
30
2012
30
2011
31
2009
32
2007
31
2005
29
2003
29
2001
27
1999

POPULATION DATA

Population (Year)
1,380,000,000
2020
1,311,051,000
2015
International Migrants (Year)
5,154,737
2019
5,241,000
2015
International Migrants as Percentage of Population (Year)
0.6
2015
Estimated Undocumented Population (Year)
Not Available (Not Available)
2019
Refugees (Year)
195,103
2019
195,891
2018
197,146
2017
197,823
2016
201,381
2015
199,937
2014
Ratio of Refugees Per 1000 Inhabitants (Year)
0.15
2014
New Asylum Applications (Year)
7,593
2019
8,642
2016
7,426
2014
Refugee Recognition Rate (Year)
15.5
2014
Stateless Persons (Year)
0
2016

SOCIO-ECONOMIC DATA & POLLS

Gross Domestic Product per Capita (in USD)
1,581
2014
Remittances to the Country
70,389,000
2015
Unemployment Rate
2014
Net Official Development Assistance (ODA) (in Millions USD)
2,983.6
2014
Human Development Index Ranking (UNDP)
130 (Medium)
2015
Pew Global Attitudes Poll on Immigration
84
2007

B. Attitudes and Perceptions

MIGRATION-RELATED DETENTION

Does the Country Detain People for Migration, Asylum, or Citizenship Reasons?
Yes
Does the Country Have Specific Laws that Provide for Migration-Related Detention?
Yes
1946

LEGAL & REGULATORY FRAMEWORK

Do Migration Detainees Have Constitutional Guarantees?
Yes (The Constitution of India, Article 14, 20, 21, 22 and 23) 1949 2020
1949
Detention-Related Legislation
The Jammu and Kashmir Public Safety Act, 1978 (1978)
1978
The Foreigners Act (1946) 2004
1946
The Registration of Foreigners Act (1939) 1986
1939
The Passport (Entry into India) Act, 1920 (1920) 1986
1920
The Citizenship Act, 1955 (1955) 2019
1955
The National Security Act (1980) 1988
1980
Regulations, Standards, Guidelines
The Foreigners (Tribunal) Order (1964)
1964
The Foreigners (Tribunal) Amendment Order (2019)
2019
The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules (2003)
2003
The Foreigners Order (1948)
1948
The Passport (Entry into India) Rules (1950)
1950
The Registration of Foreigners Rules (1992)
1992

GROUNDS FOR MIGRATION-RELATED DETENTION

Immigration-Status-Related Grounds
Detention to prevent absconding
1998
Detention to establish/verify identity and nationality
1992
Detention to prevent unauthorised entry at the border
1948
Detention for unauthorised exit
1948
Detention for failing to respect non-custodial measures
1946
Detention to effect removal
1946
Detention for unauthorized stay resulting from criminal conviction
1946
Detention for unauthorised entry or stay
1946
Detention during the asylum process
1946
Detention of unauthorised persons by executive discretion
1946
Non-Immigration-Status-Related Grounds in Immigration Legislation
Detention on public order, threats or security grounds
1980
Detention for suspicion of terrorist-related activities
1967
Detention on health-related grounds
1948
Criminal Penalties for Immigration-Related Violations
Yes (Yes)
1946
Yes (Yes)
1920
Grounds for Criminal Immigration-Related Incarceration / Maximum Length of Incarceration
Unauthorized entry (2920)
2004
Unauthorised stay (2920)
2004
Unauthorized entry (1825)
2000
Unauthorized exit (1825)
1948
Has the Country Decriminalised Immigration-Related Violations?
No
1946

LENGTH OF MIGRATION-RELATED DETENTION

Maximum Length of Detention at Port of Entry
No Limit: Yes
1948
Maximum Length of Incarceration for Immigration-Related Criminal Conviction
(2920)
2004

MIGRATION-RELATED DETENTION INSTITUTIONS

Custodial Authorities
Foreigners Regional Registration Office (Ministry of Home Affairs) Interior or Home Affairs
2020
Child Welfare Committee, West Bengal (Department of Women & Child Development and Social Welfare & West Bengal) Regional Authority-Social Affairs
2017
(Foreigners Regional Registration Office)
2008
(Foreigners Regional Registration Office)
2006
(Foreigners Regional Registration Office)
2006
Apprehending Authorities
Border Security Forces (Law enforcement, border control and national security) Ministry of Justice
2021
Police (Police) Ministry of Foreign Affairs
2021
Government Railway Police (Police) Ministry of Foreign Affairs
2021
Detention Facility Management
Police (Governmental)
2009
Police (Governmental)
2008

PROCEDURAL STANDARDS & SAFEGUARDS

Procedural Standards
Right to legal counsel (Yes) Yes
2021
Are Non-Custodial Measures/Alternatives to Detention (ATDs) Provided in Law?
Immigration Law: Yes
1946

DETENTION MONITORS

Official Name of NHRI
National Human Rights Commission
2021
Types of Authorised Detention Monitoring Institutions
National Human Rights Commission, India (National Human Rights Institution (or Ombudsperson) (NHRI))
2018
Is the NHRI Recognised as Independent by the Global Alliance of National Human Rights Institutions?
Yes
2021
Does NHRI Visit Immigration Detention Centres?
infrequently
2018
Does NHRI Receive Complaints?
Yes
2021
Does NHRI Release Reports on Immigration Detention?
Yes
2018

TRANSPARENCY

Is There a Publicly Accessible Official List of Currently Operating Detention Centres?
No
2020
Does the Country Provide Annual Statistics of the Numbers of People Placed in Migration-Related Detention?
No
2020
Does the Country Have Access to Information Legislation?
Yes
2005

READMISSION/RETURN/EXTRADITION AGREEMENTS

COVID-19

HEALTH CARE

COVID-19 DATA

INTERNATIONAL TREATIES

International Treaties Ratified
Ratification Year
Observation Date
CTOCTP, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
2011
2011
CTOCSP, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime
2011
2011
CRPD, Convention on the Rights of Persons with Disabilities
2007
2007
CEDAW, Convention on the Elimination of All Forms of Discrimination against Women
1993
1993
CRC, Convention on the Rights of the Child
1992
1992
ICCPR, International Covenant on Civil and Political Rights
1979
1979
ICESCR, International Covenant on Economic, Social and Cultural Rights
1979
1979
VCCR, Vienna Convention on Consular Relations
1977
1977
ICERD, International Convention on the Elimination of All Forms of Racial Discrimination
1968
1968
Ratio of relevant international treaties ratified
Ratio: 9/19
Ratio of Complaints Procedures Accepted
Observation Date
0
2021
0
2017
Relevant Recommendations Issued by Treaty Bodies
Recommendation Year
Observation Date
Committee on the Rights of the Child §78 (c) Release asylum-seeking and refugee children held in detention and enable them to access the Office of the United Nations High Commissioner for Refugees (UNHCR); ensure that unaccompanied and separated children, refugee and asylum-seeking children are not detained because of illegal entry/stay in the State party; and grant them the right to seek asylum and to stay in the State party until the completion of asylum procedures; (d) Establish a proper referral system under the Ministry of Home Affairs to refer refugee and asylum-seeking children to UNHCR, and develop standard operating procedures to facilitate the prompt identification and referral of such children; (e) Consider acceding to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. 2014
2014
2014
Committee on the Elimination of Racial Discrimination §16-The Committee recommends that the State party consider acceding to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol and enact a comprehensive legal framework governing the treatment of refugees. 2007
2007
2007
Committee on the Rights of the Child §71- In light of article 22 of the Convention, the Committee recommends that the State party consider acceding to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and adopt comprehensive legislation to ensure adequate protection of refugee and asylum-seeking children, including in the fields of physical safety, health, education and social welfare, and to facilitate family reunification. 2004
2004
2004
Human Rights Committee §30- the Committee recommends that, in the process of repatriation of asylum seekers or refugees, due attention be paid to the provisions of the Covenant and other applicable international norms. 1997
1997
1997
Committee on the Right of Persons with Disabilities § 39 (b) Ensure respect for and the protection of all human rights of persons with disabilities rendered stateless, including those in detention camps, urgently adopting measures to allow the reacquisition of nationality, and ratify or accede to the Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961). 2019
2019

NON-TREATY-BASED INTERNATIONAL HUMAN RIGHTS MECHANISMS

Visits by Special Procedures of the UN Human Rights Council
Year of Visit
Observation Date
Special Rapporteur on violence against women, its causes and consequences 2013
2013
2013
Special Rapporteur on extrajudicial, summary or arbitrary executions 2012
2012
2012
Special Rapporteur on freedom of religion or belief 2008
2008
2008
Special Rapporteur on violence against women, its causes and consequences 2000
2000
2000
Relevant Recommendations by UN Special Procedures
Recommendation Year
Observation Date
Special Rapporteur on violence against women, its causes and consequences Para 78(o): "Take appropriate measures to address the situation of irregular and domestic migrant women, including women refugees and asylum seekers; strengthen temporary special measures, including by ensuring that they are included in governmental and National Commission for Women programmes and projects, to enable them to better access services and improve their participation and representation in public life; strengthen and expand the services of the women protection clinics across the country;" 2014
2014
2014
Special Rapporteur on violence against women, its causes and consequences Para 160. "In cases of trafficking victims who are foreign nationals, the Governments of the region must work towards facilitating their voluntary return, if that is appropriate, rather than detain them for long periods in government homes." 2001
2001
2001
Relevant Recommendations from the UN Universal Periodic Review
Observation Date
No 2017
No 2008
No 2012

REGIONAL HUMAN RIGHTS MECHANISMS

Regional Legal Instruments
Year of Ratification (Treaty) / Transposed (Directive) / Adoption (Regulation)
Observation Date
CPCTWCP, Convention on Prevention and Combating Trafficking in Women and Children for Prostitution
2019
CWC, Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia
2011

GOVERNANCE SYSTEM

Legal Tradition(s)
Common law
Muslim law
Customary law

DETENTION COSTS

OUTSOURCING

FOREIGN SOURCES OF FUNDING FOR DETENTION OPERATIONS