Rohingya housing row : Are they refugees or illegal immigrants?

Since at least 2017 the Indian government has stayed firm on its stance that the Rohingya are illegal immigrants who will be deported. So when Union Housing and Urban Affairs minister Hardeep Singh Puri announced that the government would provide EWS flats to the Rohingya "refugees" and round-the-clock police protection in accordance with UN laws, there was an almost immediate uproar. The Union Home Ministry promptly issued a clarification which read:

"With respect to news reports in certain sections of media regarding Rohingya illegal foreigners, it is clarified that Ministry of Home Affairs (MHA) has not given any directions to provide EWS flats to Rohingya illegal migrants at Bakkarwala in New Delhi. Govt of Delhi proposed to shift the Rohingyas to a new location. MHA has directed the GNCTD to ensure that the Rohingya illegal foreigners will continue at the present location as MHA has already taken up the matter of their deportation with the concerned country through MEA. Illegal foreigners are to be kept in Detention Centre till their deportation as per law. The Government of Delhi has not declared the present location as a Detention Centre. They have been directed to do the same immediately."

Puri backtracked on his words and tweeted that the Union Home Ministry statement gives out the “correct position”.

India’s position on refugees has been ambiguous even as it has long played host to displaced people. As of February this year, 47,098 refugees and asylum-seekers are registered with UNHCR in India. Data show that 976 individuals were registered in February 2022, mainly from Afghanistan and Myanmar.

However, despite giving shelter to refugees and asylum seekers and allowing the UNHCR – the UN refugee agency – to identify individuals as such, India is not signatory to the 1951 United Nations convention on refugees. Nor does India have a refugee policy or a refugee law of its own.

That is why it has dealt differently with different refugee communities, particularly the Rohingya who, according to the Home Ministry, are a threat to national security because it said it found linkages between some Rohingya illegal immigrants with Pakistan-based terror organisations.

Who are the Rohingya?

Rohingya are an ethnic group of people who are stateless but they resided in Myanmar’s Rakhine state until they were forced to flee the country in 2017 due to a crackdown by the Myanmar military (which now rules the country after a coup in February 2021). Rohingya are predominantly Muslims and there was large scale genocide against them in Myanmar where nationalist Buddhists backed the purge.

Myanmar maintains that Rohingya are illegal immigrants from Bangladesh which now hosts the largest refugee camp in the world at Cox’s Bazaar.

Bangladesh, along with India where many Rohingya have also entered, wants to repatriate them to Myanmar. However, this has proved to be difficult because Myanmar does not accept them as its citizens.

Are stateless persons refugees?

Article 1 of the 1951 UN Convention states that a refugee must be outside the country of their nationality. It adds, however, that in the case of a stateless person, the refugee should be outside the country of their ‘former habitual residence’. In this sense stateless persons are also refugees if they are “unable or unwilling to return owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.”

However, the Indian Supreme Court has ordered “deportation” of Rohingya “following all procedures” under the Foreigners Act. This came after the government consistently conveyed its threat perception about the community. It has succeeded in sending back only a handful of Rohingya illegal immigrants with difficulty because Myanmar does not accept the deportees as its nationals.

According to the Indian Express, the Centre made the first public statement on the Rohingya matter on September 21, 2017. Speaking at a seminar organised by the National Human Rights Commission (NHRC), Union Minister Rajnath Singh had then said, “The Home Ministry has clarified its position through its affidavit (in Supreme Court) that these are illegal immigrants and they will be deported. The Rohingya are not refugees. There is a procedure to get refugee status and none of them followed this procedure. No Rohingya has got asylum in India nor has anyone applied for it. They are illegal immigrants.”

The government has not strayed from this position.

How India treats refugees

While India has no policy on refugees, it does grant citizenship to foreigners if they meet the eligibility benchmarks. The closest India came to having a refugee law was the controversial Citizenship Amendment Act, 2019, which fast-tracks citizenship for Hindus or religious minorities from India’s Islamic neighbours.

The MHA has said in its latest annual report for 2020-21: “The present legal process of acquiring Indian citizenship by any foreigner of any category as provided in the Citizenship Act-1955 is very much operational and the CAA does not amend or alter this legal position in any manner whatsoever. Hence, legal migrants of any religion from any country will continue to get Indian citizenship once they fulfil the eligibility conditions already provided in the law for registration or naturalisation.”

India’s treatment of refugees has been different under different circumstances. As Rohingyas face deportation, other refugees from Myanmar (pro-democracy activists, personnel who say they deserted the army/police for refusing to shoot civilians) have also flocked to India and received shelter. While New Delhi has tried to block the influx, but the Mizoram government refused as it believes the refugees will return to Myanmar once the situation there improves. People who have crossed over from Myanmar’s Chin state share the same ancestry as India’s Mizo people.

India already hosts the Tibetan government in exile since the 1960s. While the Tibetans are a vibrant community in India, they too find it hard to secure employment in the absence of citizenship status. At the same time, many Tibetans do not apply for an Indian citizenship despite being eligible in order to preserve their heritage and identity. Tibetans have little chance of repatriation (to China) and have pressed for some permanent residence permit that allows them to live their lives in India.

India also hosts several Sri Lankan Tamils who have been encouraged to return through voluntary repatriation since the end of the Sri Lankan war in 2009.

India has to live with the geopolitical compulsions in its neighbourhood and therefore chooses to act according to the circumstance as far as refugee status and citizenship for foreigners are concerned.