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 […]
21 May 2020 – India
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 […]
10 April 2020 – India
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 […]
Last updated: March 2022
INDIA: Joint Submission to the Universal Periodic Review
31 March 2022
41st Session of the UPR Working Group, 7-18 November 2022
Issues Related to Immigration-Related Detention and Asylum
INTRODUCTION (read full submission here)
This submission for the third cycle of the Universal Periodic Review (UPR) of India has been prepared by the Global Detention Project (GDP), a non-profit organisation based in Geneva that promotes the human rights of people who have been detained for reasons related to their non-citizen status; the World Organisation against Torture (OMCT), a network of more than 200 member organisations that works to end torture and ill-treatment, assist victims, and protect human rights defenders at risk wherever they are; and the Asia Pacific Refugee Rights Network (APRRN), a network consisting of more than 450 civil society organisations and individuals from 38 countries committed to advancing the rights of refugees in the Asia Pacific region.
This submission focuses on human rights concerns with respect to migration-related detention in India and the treatment of refugees and asylum seekers.
CONTEXT
India has been an important host for asylum seekers and refugees from neighbouring Pakistan, Bangladesh, and Myanmar, as well as from Afghanistan, Somalia, Democratic Republic of Congo, Ethiopia, et. al.
The asylum system in India operates on a dual recognition model whereby refugees from neighbouring countries, except Myanmar, fall under the Government’s mandate while those from Myanmar and non-neighbouring countries fall under the UNHCR’s mandate.
According to UNHCR India hosts over 215,000 refugees. Successive humanitarian crises, including the expulsion of Rohingyas from Myanmar and the Taliban takeover of Afghanistan, have led to a steady rise in numbers of asylum seekers. The suspension of international flights between Afghanistan and India as well as the ad-hoc nature of influx of refugees from Myanmar across India’s porous eastern borders, combined with the impact of COVID-19, have helped slow the numbers of new arrivals.
India’s refusal to ratify the 1951 Convention relating to the Status of Refugees and its 1967 Optional Protocol has led to a regime of ad-hoc policies operating as stop gap measures to govern the rights of asylum seekers and refugees instead of securing the welfare of the population through the implementation of a national asylum law. Despite the introduction of Asylum Bills in the Parliament, most notably by Member of Parliament, Dr. Shashi Tharoor in 2015, and most recently in 2022, there is no indication that the legislative body will follow through on this and enact a law.
Contrary to India’s traditional humanitarian approach towards forcibly displaced populations as evidenced by its approach towards Tibetan refugees, the Bharatiya Janata Party led Indian government has responded to recent crises by implementing strict border control policies, introducing a comprehensive detention regime, cracking down on the widely persecuted Rohingya Muslim population who are deemed to be a threat to national security, shirking from its commitments under the customary international law principle of non-refoulement, amending the citizenship legislation to render minority populations stateless, and undertaking public information campaigns which negatively impact the public perception of refugee populations.
There has been a sharp increase in the detention of refugees, in particular of Rohingyas, recognised under the UNHCR’s mandate. This ill treatment of asylum seekers, refugees, and migrants is abetted by the Foreigners Act 1946, part of a set of archaic laws that regulates immigration in India. The Act, a colonial era law, was enacted to address war-time exigencies and therefore, provides for nearly unchecked executive powers against foreigners and no special provisions or statutory exceptions for vulnerable populations like asylum seekers and refugees.
This has resulted in a situation where despite UNHCR recognition and the temporary protection they offer, recognized refugees are still at risk of administrative detention (Section 3(2)(e)), criminal imprisonment (Section 14, 14ABC), and deportation (Section 3(2)(c)).
The lack of judicial intervention, and the extent of judicial deference to government powers to order the detention and deportation of certain sections of the refugee population, has further contributed to a weakening refugee protection regime in India.
DETENTION STATISTICS
DETAINEE DATA
DETENTION CAPACITY
ALTERNATIVES TO DETENTION
ADDITIONAL ENFORCEMENT DATA
PRISON DATA
POPULATION DATA
SOCIO-ECONOMIC DATA & POLLS
MIGRATION-RELATED DETENTION
GOVERNANCE SYSTEM
LEGAL & REGULATORY FRAMEWORK
Detention-Related Legislation
Regulations, Standards, Guidelines
GROUNDS FOR MIGRATION-RELATED DETENTION
Immigration-Status-Related Grounds
LENGTH OF MIGRATION-RELATED DETENTION
MIGRATION-RELATED DETENTION INSTITUTIONS
Custodial Authorities
Child Welfare Committee, West Bengal
(Department of Women & Child Development and Social Welfare & West Bengal)
Regional Authority-Social Affairs
PROCEDURAL STANDARDS & SAFEGUARDS
DETENTION MONITORS
Insitutions that Can Make Unannounced Visits
1. National Human Rights Commission of India [National Human Rights Institution (or Ombudsperson) (NHRI)]
2. Human Rights Law Network (SLIC), Commonwealth Human Rights Initiative, Project 39A, NLU, Delhi [Non-Governmental Organizations (NGO)]
3. Police Accountability Commission [Internal Inspection Agency (IIA)]
4. United Nations High Commissioner for Refugees in India [International or Regional Bodies (IRBs)]
> National human rights monitoring bodies
NHRI Monitoring Reports
National Human Rights Commission of India, India Comments on AINNI Report
(2018)
Report on NHRC Mission to Assam’s Detention Centres from 22 to 24 January 2018
(2018)
> National Preventive Mechanisms (Optional Protocol to UN Convetion against Torture)
NPM Monitoring Reports
NA
> Non-governmental organisations (NGOs)
NGO Immigration Detention Monitoring Reports
Monitoring Prisons: A Visitor’s Guide, 2017
(2018)
Refugees and the Law
(2011)
> Governmental monitoring bodies
> International detention monitoring
TRANSPARENCY
READMISSION/RETURN/EXTRADITION AGREEMENTS
List of States with Whom the Country Has No Extradition Treaty
Albania;
Algeria;
Andorra;
Angola;
Argentina;
Austria;
Bahamas;
Barbados;
Belize;
Benin;
Bolivia;
Bosnia and Herzegovina;
Botswana;
Brunei;
Burkina Faso;
Burundi;
Cabo Verde;
Cambodia;
Cameroon;
Central African Republic;
Chad;
China;
Colombia;
Comoros;
Democratic Republic of the Congo;
Republic of the Congo;
Costa Rica;
Cote d'Ivoire;
Cuba;
Cyprus;
Czechia;
Denmark;
Djibouti;
Dominica;
Dominican Republic;
Ecuador;
El Salvador;
Equatorial Guinea;
Eritrea;
Estonia;
Eswatini;
Ethiopia;
Finland;
Gabon;
Gambia;
Georgia;
Ghana;
Greece;
Grenada;
Guatemala;
Guinea;
Guinea-Bissau;
Guyana;
Haiti;
Honduras;
Hungary;
Iceland;
Iraq;
Ireland;
Jamaica;
Japan;
Jordan;
Kazakhstan;
Kenya;
Kiribati;
Kosovo;
Kyrgyzstan;
Laos;
Latvia;
Lebanon;
Lesotho;
Liberia;
Libya;
Liechtenstein;
Luxembourg;
Madagascar;
Maldives;
Mali;
Malta;
Marshall Islands;
Mauritania;
Micronesia;
Moldova;
Monaco;
Montenegro;
Morocco;
Mozambique;
Myanmar;
Namibia;
Nauru;
Nicaragua;
Niger;
Nigeria;
North Korea;
North Macedonia;
Norway;
Pakistan;
Palau;
Palestine;
Panama;
Paraguay;
Qatar;
Romania;
Rwanda;
Saint Kitts and Nevis;
Saint Lucia;
Saint Vincent and the Grenadines;
Samoa;
San Marino;
Sao Tome and Principe;
Senegal;
Serbia;
Seychelles;
Sierra Leone;
Slovakia;
Slovenia;
Solomon Islands;
Somalia;
South Korea;
South Sudan;
Sudan;
Suriname;
Syria;
Taiwan;
Timor-Leste;
Togo;
Tonga;
Trinidad and Tobago;
Turkmenistan;
Tuvalu;
Uganda;
United Kingdom;
Uruguay;
Vanuatu;
Vatican City;
Venezuela;
Yemen;
Zambia; and
Zimbabwe
COVID-19
HEALTH CARE
COVID-19 DATA
Have Populations of Concern Been Included/Excluded From the National Vaccination Campaign?
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
Ratio of relevant international treaties ratified
Ratio: 9/19
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
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
Global Detention Project Submissions to Universal Periodic Review
Date of Submission
Observation Date
Link to Submission text https://www.globaldetentionproject.org/wp-content/uploads/2022/04/INDIA-Submission-to-the-Universal-Periodic-Review-41ST-session.pdf
Submission partners Global Detention Project (GDP); World Organisation against Torture (OMCT); Asia Pacific Refugee Rights Network (APRRN)
UPR Cycle 3rd
Were GDP Recommendations Reflected in UPR Recommendations Partially
Discussion of impact The submission focuses on human rights concerns with respect to migration-related detention in India and the treatment of refugees and asylum seekers.
Submission partners Global Detention Project (GDP); World Organisation against Torture (OMCT); Asia Pacific Refugee Rights Network (APRRN)
UPR Cycle 3rd
Were GDP Recommendations Reflected in UPR Recommendations Partially
Discussion of impact The submission focuses on human rights concerns with respect to migration-related detention in India and the treatment of refugees and asylum seekers.
2022
2022
REGIONAL HUMAN RIGHTS MECHANISMS
Regional Legal Instruments
DETENTION COSTS
OUTSOURCING
FOREIGN SOURCES OF FUNDING FOR DETENTION OPERATIONS
Government Agencies
Bureau of Immigration: http://boi.gov.in/#
Ministry of Home Affairs: http://mha.nic.in
UNHCR: http://www.unhcr.org.in/
Media
The Indian Express: http://indianexpress.com/
Press Trust of India: http://www.ptinews.com/
NGOs and Research Institutions
Human Rights Law Network: http://www.hrln.org/hrln/
Centre for Development and Human Rights: http://www.cdhr.org.in
