Emergency Visas for Afghans Escaping Taliban: But 'Asylum' is Not 'Citizenship'

In absence of a clear refugee law, Aghans coming to India will be subject to political whims of present government.

For Afghan women, the Taliban's increasing power is terrifying. The world must not look away.

(Photo: PTI)

On 18 August, the Indian government announced a new category of 'emergency electronic visa' for Afghan nationals attempting to escape the country after the Taliban takeover.

The new ‘e-Emergency X-Misc Visa' will be extended to Afghans who "stood by India" during the ongoing crisis and will be valid for six months. Afghan nationals can apply for this visa online and applications will be processed in New Delhi "keeping the country's security in mind".

The Ministry of Home Affairs (MHA) reviews visa provisions in view of the current situation in Afghanistan. A new category of electronic visa called ‘e-Emergency X-Misc Visa’ has been introduced to fast-track visa applications for entry into India.

Spokesperson of Ministy of Home Affairs said in a tweet

As the Indian government's decision would lead to the entry of several Afghan nationals into India, there's a need to understand the nature of their legal status.

There is a difference between 'refugees', 'asylum-seekers', and 'citizens'. While India has a law on citizenship, it does not have a refugee law or a well-defined asylum policy. This throws the fate of Afghans arriving in India into uncertainty and confusion.

Refugees, Asylum Seekers, and Migrants: The Difference

While the words 'refugees', 'migrants', and 'asylum seekers' are used interchangeably in common parlance, legally they are different from each other.

1. Refugee: As per Amnesty International, refugees are those who have fled their own country because they are at the risk of serious human rights violations and persecution there. The risks to their safety and life were so great that they felt they had no choice but to leave their country and seek safety outside because their own government cannot or will not protect them from those dangers.

2. Asylum Seeker: Asylum seekers are those who have left their country and seek protection from persecution and serious human rights violations in another country but are not legally recognised as refugees and are awaiting a decision on their asylum claim.

3. Migrant: There is no internationally recognised definition of a 'migrant'. So a migrant can be defined as anyone who leaves their country for another and who is not a refugee or an asylum seeker.

Refugees have a right under the customary international law to seek international protection. Seeking asylum is also an internationally recognised human right. Migrants, however, can move to another country for many reasons – work, education, better living conditions, etc.

Citizenship Under the Indian Law

Under the Indian law, citizenship finds a place both in the Constitution as well as the Citizenship Act of 1955. Articles 5-9 of Part II of the Constitution define citizenship from the time of "commencement of the Constitution".

Sections 3-7 of the Citizenship Act lay down modes for acquiring Indian citizenship after the commencement of the Constitution through birth, descent, naturalisation, and incorporation of territory.

However, neither the Constitution nor the Citizenship Act provides for handling of asylum seekers or refugees. India does not have a specific law on refugees; it is not even a party to the Refugee Convention of 1951.

In 2019, a major and highly controversial change was brought in by the current Bharatiya Janata Party-led union government to the citizenship law. The Citizenship Amendment Act was passed by the parliament to provide Indian citizenship to minority communities fleeing persecution from neighbouring countries. It seeks to offer citizenship to Hindus, Parsis, Buddhists, Sikhs, Jains, and Christians from Bangladesh, Afghanistan, and Pakistan.

The Citizenship Amendment Act clearly exposed the intention of the current government to award (and refuse) citizenship on religious lines. The law would have implications not only for Muslims seeking asylum in India, but also Muslims currently living in India. The National Register of Citizens process in Assam and mass detention and deportation drive against Rohingya refugees are some of the examples.

An Indian citizen is entitled to all the rights and remedies enshrined under the Constitution and provided by any statute currently in force. The same does not apply to the refugees or asylum seekers. However, this does not mean that a refugee or an asylum-seeker will have no protection in India.

Protections under Article 14 (right to equality) and Article 21 (right to life and liberty) of the Constitution extend to not just citizens but "all persons". In Louis De Raedt v Union of India (1991) and State of Arunachal Pradesh v Khudiram Chakma (1993), the Supreme Court categorically included foreigners under the ambit of articles 14 and 21. This means that the Indian government has an obligation to protect the lives of not just Indian citizens but also refugees and asylum seekers on Indian soil.

Fate of Afghans Fleeing Taliban

The immigration law in India is covered under the Passport (Entry Into India) Act, 1920, the Foreigners Act, 1946, and the Registration of Foreigners Rules, 1946.

In effect, Indian law does not differentiate between foreigners coming to India on a visa and asylum seekers escaping persecution in their home countries. This lack of distinction is precisely what allows discrimination and human rights violations against asylum seekers, refugees, and trafficked migrants.

While there is no refugee law, there are standing operating procedures (SOPs) issued by the MHA on 29 December 2011, as "internal guidelines" for central and state agencies on “how to deal with refugees.”

The SOPs allow foreigners “claiming to be refugees” to make a representation before Foreigners Regional Registration Office (FRRO) seeking a Long Term Visa. The FRRO is tasked to collect details from the 'foreigner' about the reasons and circumstances in which they left their country of origin, and any document issued by either a national or international agency such as the United Nations High Commissioner for Refugees.

If the FRRO feels that there is a “general perceived threat” in the foreigner’s home country, which may subject them to persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group, or political opinion, the case will be referred to the MHA.

The MHA considers the FRRO report and consults the Ministry of External Affairs (MEA), on whether to grant a Long Time Visa of up to one year to the concerned foreigner. This Long Term Visa can be extended annually for up to five years by making an application to the FRRO.

Since there is no refugee law in India, the government came up with the new category of emergency visa of six months to deal with the Afghans fleeing the crisis. However, what will be the status of these Afghans after the completion of six months? Will they be granted Long Term Visas or will they be deported? All this is unclear.

Under the SOPs, Long Term Visas offer a degree of stability and security to the refugees in India, as holders are eligible for employment in the private sector and can also study in any academic institution. Further, they cannot be deported without special MHA clearance.

However, the incoming Afghans will initially only be on an emergency visa, so we do not know whether the benefits of a Long Term Visa holder will be extended to them. If not, how will they survive for six months? The Indian government has also not clarified the humanitarian assistance and other facilities that will be provided to Afghans coming under the new visa.

Therefore, the fate of Afghan nationals coming to India under the new emergency visa hangs in delicate balance. What's certain is that in the absence of a refugee law, their future in India is open to the political whims and fancies of the present government. History has shown that such a situation does not usually yield positive outcomes.