A Prefatory Note

On The
Refugees And Asylum Seekers
(Protection) Bill, 2006



















THE PUBLIC INTEREST LEGAL SUPPORT AND RESEARCH CENTRE
2
THE
REFUGEES AND ASYLUM SEEKERS (PROTECTION) BILL, 2006

PREFATORY NOTE


I. BACKGROUND

1.1 This is a revised proposal for the Model National Law for Refugee Protection
in India (Model Law), which was drafted by an Eminent Persons Group
(EPG) headed by former Chief Justice of India, Mr. P. N. Bhagwati. The
EPG, set up in November 1994, also comprised Justice Dorab Patel from
Pakistan, Dr. Kamal Hossain from Bangladesh, Mr. Risikesh Shah from Nepal
and Mr. Bradman Weerakoon from Sri Lanka and was convened by the then
United Nations High Commissioner for Refugees, Ms. Sadako Ogata.
Following consultations in Colombo, New Delhi and Dhaka, the Model Law
for Refugee Protection was adopted in 1997.

1.2 While a unanimous need was expressed in the consultation process for a
statutory refugee protection regime in India, there were some misgivings
concerning the substantive and procedural comprehensiveness of the Model
Law. The National Human Rights Commission (NHRC) appointed a Experts
Committee on Refugee Protection to examine the Model Law and suggest
changes. PILSARCs Director Dr. Rajeev Dhavan was asked to assist in this
process. With a view to suggesting changes to the Model Law, PILSARC
studied various Indian rights-empowering statutes and the best practices of
foreign refugee protection laws before suggesting the Refugees and Asylum
Seekers (Protection) Bill, 2006, which is enclosed herewith.

II. A BRIEF REVIEW OF THE MODEL LAW AND DETAILS OF PROPOSED CHANGES

The Preamble

2.1 The purpose of a legislation should be spelt out in the Preamble since a
preamble can have interpretative value [See, A. Thangal Kunju Musaliar AIR
1956 SC 246; Burrakur Coal Co. Ltd. AIR 1961 SC 954; and Arnit Das (2000)
5 SCC 488].

Changes to the Preamble of the Model Law were made keeping in
mind the constitutional scheme of equality, fairness and due process; Indias
experience and traditional hospitality to refugees as well as Indias accession
to major international human rights treaties; and, the need to formulate an
appropriate statutory regime that protects the dignified treatment of refugees
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in concert with national and international organisations, such as the Office of
the United Nations High Commissioner for Refugees (UNHCR).

The Objects Clause

2.2 The objects clause, detailing the intention of the legislature, in the main
body of the statute is an enforceable mechanism to give directions to a
statute and can be a formidable primary aid in statutory interpretation [See,
for example, Section 83 of the Patents Act, 1970].

Therefore, the proposed change to the Model Law will include an
objects clause to underline the need for refugee protection by a fair
procedure with due process and for effective protection through a system of
socio-economic protection. The clause will also subject the refugee
protection regime to the peremptory international law norm of non
refoulement and any other principal norms of refugee protection.

The Definition of Refugee

2.3 The refugee definition set out in the Model Law reproduces both the five
chief grounds of the 1951 Convention Relating to the Status of Refugees
(Refugee Convention) and the four additional grounds of the Organisation
of African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa, 1969 (OAU Convention). In addition, the Model Law
adds three new grounds to claim refugee status: a well founded fear of
persecution on account of (a) sex, (b) ethnic identity; and, (c) serious
violations of human rights.

However, in the case of an asylum seeker with multiple nationalities,
a clause has been added to ensure that India is not mandated to provide
protection unless the asylum seeker faces a well founded fear of persecution
in all the countries in which he is a citizen. In addition to the multiple
nationalities clause, it may be advisable to incorporate an explanation
extending refugee protection to victims of persecution committed by non-
State actors also.

Exclusion from Refugee Status

2.4 The Model Laws exclusion clause departs from conventional exclusion
provisions in three ways: (a) it imposes a high standard of proof on the State
authority; (b) it omits generalised exclusion grounds; and, (c) it makes
reference to the SAARC Regional Convention on the Suppression of
Terrorism, 1987 (SAARC Terrorism Convention). The standard of proof
required a conviction to exclude criminals against humanity and peace
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and war criminals is higher than accepted international norms and is unlikely
to be met considering the volatile situations from whence such people flee
making it impossible for courts to function freely and fairly.

The reference to the SAARC Terrorism Convention will diminish
refugee protection by diluting the defences against extradition. Through its
Additional Protocol, the SAARC Terrorism Convention deems certain
offences as non-political offences and takes away a valuable defence
available to a person sought to be extradited or removed from a signatory
state, even where the person is simply accused of a terrorist offence. This not
only a back-door expansion of the scope of exclusion, but also a
contravention of Article 14(2) of the Universal Declaration of Human Rights
that denies persons the right to seek and enjoy asylum only in the case of
prosecutions genuinely arising from non-political crimes or from acts
contrary to the purposes and principles of the United Nations. The political
offence exception to extradition, contained in Section 7(2) of the Indian
Extradition Act, 1963, is also similarly diluted. Therefore, the requirement of
a conviction and the reference to the SAARC Terrorism Convention has been
removed and substituted with a revised exclusion clause.

The Rule of Non Refoulement and Conditions for Return

2.5 The jus cogens principle of non refoulement in the Model Law merely
prevents the expulsion or return of a refugee or asylum seeker to a place
where his life and freedom are threatened.

This important rule has been re-stated to clearly and authoritatively to
prohibit any action to remove persons to any place where they may face
persecution on account of any of the grounds contained in the Refugee
Convention, or where their life, physical safety and freedom are threatened
on account of any of the grounds set out in the OAU Convention.

2.6 To remove a refugee or asylum seeker from India, distinct conditions that are
clearly stated must be met. The Model Law does not prescribe an adequate
regime for the removal of a refugee or asylum seeker to protect them
arbitrary State action.

To be seen in the light of the bar to refoulement, new provisions have
been formulated to set out distinct conditions upon which a refugee or
asylum seeker may be removed from India. The permissible grounds for
removal have been restricted to a refugee or asylum seekers (a) proved
involvement in a crime against humanity etc.; (b) threat to Indian sovereignty
or integrity; (c) final denial of asylum; (d) exclusion from refugee status; and,
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(e) cessation of refugee status. The removal process must conform to the
norms of due process and natural justice.

Constitution and Appointment of Relevant Authorities

2.7 The question of constituting the necessary authorities to process asylum
applications, of ensuring their independence and appointing members to
their posts is only cursorily examined in the Model Law.

The EPG envisaged a two-tier judicial-tribunal structure, with
applications filed before a Commissioner and appeals lying to a Refugee
Committee. Considering the models adopted by the Protection of Human
Rights Act, 1993 (POHRA) and the various National Commissions Acts,
these provisions have been enlarged to provide for (a) appointment of the
Commissioner and constitution of a Refugee Appellate Board; (b)
qualifications of persons who may be appointed to these authorities; (c) term
and conditions of service; (d) removal and resignation procedures and
concomitant safeguards; (e) secretarial assistance; (f) allocation of work; (g)
rules of procedure; and, (h) location of the authorities. While setting up these
statutory authorities, care must be taken to ensure their compliance with due
process and natural justice by incorporating suitable safeguards as to their
independence, freedom from interference and judicial status.

Functions and Powers of the Authorities

2.8 The Model Law does not enumerate the functions of the two-tier authorities
it creates, or set out the powers that these authorities are vested with.

Therefore, a new chapter has been inserted to clearly delineate the
roles and powers of both these authorities in the refugee determination
process. To be effective, these quasi-judicial bodies have been vested with
limited powers of a civil court to, inter alia, order the summoning of
witnesses, discovery of documents and the reception of evidence on oath.
These authorities have also been given the power to conduct inquiries suo
moto. Matters of asylum before these authorities have been excluded from
the jurisdiction of other courts to avoid a multiplicity of claims.

Entry into India and Procedure for Asylum

2.9 The Model Law does not set out procedural safeguards against the
refoulement or detention of asylum seekers at Indian borders. To
complement the general bar against refoulement, such a procedure is
important in the interim period between the entry of an asylum seeker into
India and the consequent application for asylum before the Commissioner.
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The procedure that has been proposed (a) stipulates a time period
within which an asylum application must be filed; and (b) exempts an
asylum seeker from the operation of the illegal entry offence of the
Foreigners Act, 1946; until his application for asylum has been finally
disposed. The asylum claims procedure before the relevant authorities must
conform to the norms of due process and natural justice. It is important that
the asylum seeker is given an adequate opportunity to present his case with,
if required, legal assistance and the services of a translator.

Mass Influx

2.10 Although the Indian Government has consistently hosted mass influxes, its
responses to regional crises has been guided by political considerations and
its provision of socio-economic protection, in whatever limited measure, to
mass influx entrants has been arbitrary and subject to executive discretion.

Hence, it is important that mass influx situations are met with
established procedures free from political compulsion and some measure of
minimum protection extended to such refugees. Changes have been
proposed in the Model Law to include provisions to register mass influx
refugees and enable the government to impose reasonable restrictions in the
public interest. Temporary refugees must also be protected with a basic
regime of rights.

Voluntary Repatriation

2.11 The EPGs Model Law included a brief clause on the voluntary repatriation of
refugees to their country of origin. India has dealt with the voluntary
repatriation of refugees both in terms of the Bangladesh crisis in 1971 and
the Sri Lankan Tamil crisis that is continuing. There is a need to ensure that
the decision of a refugee to return to his home country is voluntary and not
made as a result of State pressure or eviction.

Accordingly, the proposed changes to the Model Law will protect
returning refugees by ensuring that their decision is written, voluntary,
informed and vetted by a quasi-judicial authority to allow a safe and
dignified return.

Rights of Refugees and Effective Protection

2.12 Although the Model Law makes provision for the rights of accepted refugees
in India, it is a salutary provision and needs to be strengthened to provide
refugees with a strong regime of social and economic rights. Refugees, who
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have fled their homes because of conditions of extreme persecution and
violence, form a vulnerable community anywhere. As a host country, India
often adds to this trauma of flight by dealing arbitrarily with refugees, often
denying them the basic right to better their lives. The Refugee Convention, in
addition to the political rights of non refoulement and asylum, also requires
that countries not discriminate between refugees (Article 3); respect their
religious background (Article 4); respect their right to association (Article 15);
provide access to courts (Article 16); provide the rights to work, both blue-
collar and white-collar (Articles 17 19); provide access to public education
(Article 22); housing (Article 21); labour equality and social security (Article
24); administrative assistance (Article 25); and, the freedom of movement
(Article 26).

2.13 While India has not acceded to the Refugee Convention, it has joined a
number of other international human rights affirming conventions. These
include the Universal Declaration of Human Rights, 1948; the International
Convention on Civil and Political Rights, 1966; the International Convention
on Economic, Social and Cultural Rights, 1966; the International Convention
on the Elimination of all Forms of Racial Discrimination, 1966; the
Convention Against Torture and Cruel, Inhuman or Degrading Treatment or
Punishment, 1984; and, the Convention for the Elimination of all Forms of
Discrimination Against Women, 1979. The provisions of these international
human rights instruments are applicable in India and may be enforced by
Indian courts [See inter alia, Nilabati Behera (1993) 2 SCC 746; Vishaka
(1997) 6 SCC 241; Peoples Union for Civil Liberties (1997) 3 SCC 433].

Therefore, a separate chapter has been inserted into the Model Law
dealing with the rights and obligations of refugees whose asylum clams have
been accepted. A separate clause to provide a minimum corps of rights to
asylum seekers and mass influx entrants has also been included to suffice
temporary protection in India.

Miscellaneous Provisions

2.14 In addition to the substantive changes mentioned above, the Model Law
must also contain provisions for (a) bringing the members of the various
authorities within the meaning of public servant in Indian law; (b)
empowering the Central Government to frame rules for the procedural
execution of the Model Law; (c) protecting actions of the State done in good
faith; and, (d) giving the Model Law overriding effect over other statutes.

These and other miscellaneous provisions have also been added to
the Model Law.

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III. SUMMARY OF PROPOSED CHANGES

3.1 In sum:

(a) There is a need for a statutory refugee protection regime in India;
(b) The Model Law addresses this need, but falls short of a
comprehensive procedural and substantive protection;
(c) We have reworked the Model Law; and, have proposed the following
changes:

Preliminary

(i) A revised and simplified Preamble;
(ii) An enforceable objects clause within the main body of
the statute;
(iii) An expanded definitions clause;

Principles

(iv) Additions and changes to the refugee definition and
exclusion clauses;
(v) A comprehensive non refoulement clause to impose a
general bar against the removal of refugees from India
except upon certain specified conditions;

Procedure for Asylum

(vi) A new chapter prescribing the procedure for an asylum
seeker to apply for asylum and appeal;
(vii) Interim protection for asylum seekers to remain in India
pending the determination of their application for
asylum;
(viii) A new clause to bar the jurisdiction of regular courts
from asylum claims;
(ix) Provisions granting certain rights to asylum seekers
upon hearing;
(x) A new clause for the reasoned decisions of the
authorities;

Refugee Status Determination

(xi) A new chapter dealing specifically with the constitution
and appointment of a Commissioner of Refugees and a
Refugee Appellate Board;
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(xii) Provisions for the independence of these authorities and
their operation free from external pressure;
(xiii) A new chapter specifying the powers and functions of
these authorities;

Mass Influx

(xiv) A new chapter for the registration of refugees in a mass
influx situation;
(xv) Provisions allowing the imposition of reasonable
restrictions in the public interest;

Voluntary Repatriation

(xvii) Enlarged provisions for voluntary repatriation to protect
refugees from coerced return;

Effective Protection

(xviii) Provisions detailing the rights that recognised refugees
are entitled to in India;
(xix) Provisions specifying the interim protection that asylum
seekers and mass influx refugees are entitled to while in
India;

Miscellaneous

(xx) Provisions to protect the rights of refugees during
voluntary repatriation;
(xxi) A new clause to bring the members of authorities within
the meaning of public servant;
(xxii) A new clause empowering the government to frame
rules;
(xxiii) A new good faith clause;
(xxiv) A new non obstante clause.

IV. POINTS FOR DISCUSSION AND SUGGESTIONS THAT ARE INVITED

4.1 Apart from general comments, we specifically need elucidation on the
following areas:

(I) Clause 3 the objects clause; specifically have all important
principles of refugee protection been mentioned?

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(II) Clause 4 the definition of refugee; does the Explanation sufficiently
include non-State persecution (e.g. Gujarat riots, women in Pakistan
in light of the decision of the House of Lords in Islam [1999] All ER
545) within the scope of refugee protection?

(III) Clause 5 the exclusion clause; is a conviction for crimes against
humanity etc. too high a standard to insist upon, since very few such
criminals are ever indicted, let alone convicted?

(IV) Clause 7(1) the non refoulement clause; modelled on Section 4 of
the (South African) Refugees Act 1998, is the prohibition against
return sufficiently comprehensive?

(V) Clause 7(2) exceptions to non refoulement.

(a) Clause 7(1) overrides contrary provisions in the Bill and in
Indian law (notwithstanding anything contained in the Act)
and lays down the rule that return to a place where life or
freedom is threatened is prohibited; and,

Clause 7(2) makes the possibilities of removal subject to the
rule stated sub-clause (1) (subject to sub-section (1)) [i.e.
removal is only permitted to a safe third country]. Will the
construction of this clause suffice?

(b) Traditionally, there are two exceptions to the rule against
refoulement to allow removals when:

(i) there are reasonable grounds for regarding [the
refugee] as a danger to the security of the country or,
(ii) when the refugee, having been convicted by a final
judgement of a particularly serious crime, constitutes a
danger to the community of [the host] country [Article
33(2) of the 1951 Refugee Convention].

The EPGs Model Law broadly replicates these categories thus:

(i) where a Minister has certified that there are reasonable
grounds to believe that an asylum seeker or refugee is a
threat to the sovereignty and integrity of India,
(ii) where an asylum seeker or refugee has been convicted
by a final judgement of a crime against peace, a war
crime or a crime against humanity and constitutes a
danger to the community [Clause 5].
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However, asylum seekers and refugees can be removed from
the host country by other ways (i) on being hit by the
exclusion or cessation clauses, (ii) on asylum being finally
rejected and (iii) upon perjury in the asylum claim. Returning a
person on these grounds will expose him equally to the
persecution he is fleeing; therefore, these grounds should be
added in the exceptions to non refoulement clause to allow a
removal, but not to a country/place where he will be
persecuted.

(VI) Clause 8(2) the assistance upon entry clause; will this clause
suffice to prevent the harassment of asylum seekers by (often low-
ranking) border guards exercising powers under Sections 14 and 14A
of Foreigners Act, 1946?

(VII) Clause 8(4) the illegal entry clause; to legalise the entry that would
otherwise be in violation of the Foreigners Act.

(VIII) Clause 14(8) the clause preventing the Commissioner and Members
of the appellate authority from holding a governmental office after
such employment. This clause is taken from the Protection of Human
Rights Act, 1993 [POHRA] to apply to ex-NHRC members. Is its
inclusion in the Bill warranted?

(IX) Clause 15 procedure for removal; subjects the removal of the
Commissioner/Member of the Appellate Board to Supreme Court
scrutiny following the example of POHRA.

(X) Clause 16 and 17 functions of the authorities. The Procedures
Chapter (Clauses 8-11) lays down most functions of the authorities,
but the chapter only deals with applications for asylum. There may be
a need for separate provisions to invest the authorities with suo moto
powers.

(XI) Clauses 25-28 mass influx chapter. We would like further expert
interaction on this.

(XII) Clause 29 voluntary repatriation. No similar provision exists in
foreign legislation or international instruments. We need further
advice on this.

(XIII) Clauses 30-32 the right and duties clauses. There is a dual scheme
for investing asylum seekers and refugees with rights: substantive
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protection for recognised refugees (Clause 30) and lesser interim
protection for asylum seekers and mass influx refugees (Clause 31).
Identity is a minimum guarantee for asylum seekers and, together with
the right to international travel, is a dual right of recognised refugees
(Clause32).

(XIV) Clause 33 rule making power.

(XV) Clause 38 finality and jurisdiction. Read together with Clause 10(4),
proceedings under the Bill should be subject to judicial review but
sealed from the intervention of civil courts.

(XVI) General Questions:

(a) Is the Bill too long and complex? If so, how can it be modified?


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