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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 19 |
Preamble:
Acknowledging the fact that India has a long tradition and experience in accommodating inflows of refugees, and demonstrating its faith in the principle of non-refoulement;
Affirming its commitment to uphold international human rights principles through accession to all major human rights treaties, and adoption of appropriate legislative steps to implement them;
Considering the pronouncements of the Supreme Court and High Courts extending the protection of fundamental rights to refugees and asylum seekers;
Reaffirming the initiatives taken by Parliament under Article 37 and 253 of the Constitution of India to provide an administrative system free from arbitrariness and guarantee equality, fairness and due process of law;
Recognising the need for an appropriate legal framework to process matters relating to forced migration in respect of determination of refugee status, protection from refoulement and treatment during stay;
The following Act is enacted to consolidate, streamline, and harmonise the norms and standards applicable to refugees and asylum seekers in India; to establish a procedure and the requisite machinery for granting refugee status; to guarantee them fair treatment, provide for their rights and obligations and regulate matters connected therewith. For the purposes of this Act, the grant of refugee status shall be considered a peaceful and humanitarian act and does not imply any judgement on the country of origin of the refugee.
a. This Act may be called the Refugees and Asylum Seekers Protection Act, 2000.
b. It extends to the whole of India.
c. It shall come into force on the day specified by the Union Government by notification in the Gazette of India.
In this Act, unless the context otherwise requires:
a. ‘Asylum seeker’ means a person who seeks recognition and protection as a refugee.
b. ‘Refugee’ means a ‘refugee’ defined in Article 3 and includes dependants of persons determined to be refugees.
c. ‘Country of origin’ means the refugee’s country of nationality. Or if he or she has no nationality, his or her country of former habitual residence.
d. ‘Commissioner’ means the ‘Commissioner of refugees’, defined under the provisions of Articles 7 and 8 of this Act.
e. ‘Refugee Committee’ means the ‘Committee’ established as an Appellate Board by the Government under Articles 7 and 8 of this Act.
f. Refugee Children’ means children below the age of 18 years who are seeking refuge or where protection is extended by the state to children under Article 22 of the Convention on the Rights of the Child, 1989.
g. “Serious non-political offence” refers to any offence determined in accordance with Article 17 of this Act, and listed in schedule A of the Act.
h. “Government” shall mean Union Government
A refugee is defined as:
a. any person who is outside his or her country of origin, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, or,
b. any person who owing to external aggression, occupation, foreign domination, serious violation of human rights or other events seriously disrupting public order in either part or whole of his or her country of origin, is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin.
A person shall be excluded from refugee status for the purpose of this Act if:
a. He or she is convicted for a crime against peace, a war crime or a crime against humanity, in accordance with the applicable principles and rules of International Law/ Conventions including the SAARC Regional Convention On Suppression of Terrorism, 1987;
b. He or she has committed a serious non-political crime as specified in the Schedule A, outside India prior to his or her admission into India as a refugee.
a. No refugee or asylum seeker shall be expelled or returned in any manner whatsoever to a place where there are reasons to believe his or her life or freedom would be threatened on account of any of the reasons set out in sub-sections (a) or (b) of Article 3;
b. 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, or 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, such an asylum seeker or refugee may be asked to leave India. However, such an asylum seeker or refugee shall not be returned to a situation or to any country in which his or her life or liberty is threatened for reasons of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion.
a. Where an application is made by, on behalf of, or in relation to an asylum seeker, for the recognition of the said asylum seeker as a refugee, either at the point of entry or subsequently, the applicant shall, in accordance with the principle laid down in Article 5 be directed and assisted to apply to the Commissioner of Refugees;
b. Where an application is made by, on behalf of, or in relation to an asylum seeker, for the determination of refugee status, pending determination of such status, no restrictions shall be imposed on the asylum seeker save and except those that are necessary in the interests of sovereignty and integrity or public order of India. Such application may be made within such reasonable time as may be prescribed in accordance with Article 17 of this Act;
c. Where an application for refugee status is made by, on behalf of, or in relation to a child, accompanied or unaccompanied; or where a refugee child is found within the territory of India; he or she shall receive immediate and appropriate protection and humanitarian assistance in accordance with the existing policy and legal framework of the state. The requirement of filing an application form on their behalf may be entrusted to a local Legal Service Authority or their representatives or any other recognised NGO involved in the welfare of children in general.
In order to implement the provisions of this Act:
a. The President shall appoint the Commissioner of Refugees, and Deputy Commissioners of Refugees as may be necessary on the basis of the eligibility requirements and procedure laid down in Articles 7 and 8 of this Act;
b. Other officers as may be necessary shall be appointed after consultation with the Commissioner of Refugees;
c. The President shall appoint the Chairperson and Members of the Refugee Committee
d. The Chairperson of the Refugee Committee shall appoint the staff of the Committee.
a. The Commissioner of Refugees shall be a sitting or retired High Court Judge, and shall be appointed after consultation with the Chief Justice of India.
b. The Deputy commissioner should be qualified to be appointed as a High Court Judge; and shall be appointed after consultation with the Chief Justice of India.
c. The Chairperson of the Refugee Committee shall be a retired Supreme Court Judge.
d. The Refugee Committee shall consist of the following three members: a sitting or retired High Court Judge, appointed by the President in consultation with the Chief Justice of India, and two independent members with knowledge and experience of refugee issues and refugee law.
e. The Commissioner of Refugees may assign such of his functions as may be necessary to the Deputy Commissioner of Refugees appointed under this Act.
f. The decision of the Commissioner of Refugees shall be final. Any appeal against such decision shall lie only with the Refugee Committee, as the Appellate Board for reconsideration of the decision.
a. An asylum seeker who wishes to claim refugee status under the terms of this Act shall be heard by a Commissioner of refugees before the determination of his or her status;
b. During the refugee determination interview, the asylum seeker shall be provided necessary facilities including the services of a competent interpreter where required, and a reasonable opportunity to present evidence in support of his or her case;
c. The asylum seeker, if he or she wishes, shall be given an opportunity, of which he or she should be duly informed, to contact a representative of UNHCR;
d. The asylum seeker, if he or she wishes, shall be entitled to be assisted in the determination of the status by a person of his or her choice including a legal practitioner. A list of competent legal practitioners, who are conversant with refugee law, shall be provided by the Government to the asylum seeker;
e. If the asylum seeker is not recognised as a refugee, he or she could be given a reasonable time as provided in the rules, to appeal to the Refugee Committee;
f. Where an application by the asylum seeker is rejected, the Commissioner of refugees shall give reasons for the order in writing and furnish a copy of it to the asylum seeker;
g. If the asylum seeker is recognised as a refugee, he or she shall be informed accordingly and issued with documentation certifying his or her refugee status.
a. The findings, as well as the orders of the Commissioner of Refugees, the Refugee Committee and other authorities established under this Act shall be published by them periodically.
b. The Commissioner of Refugees and the Refugee Committee shall publish an annual report. The annual report and any other periodic or special reports related to their work shall be made public.
The Refugee Committee shall receive and consider appeals made by asylum seekers against the decision of the Commissioner of Refugees. The Committee may also consider applications for refugee status suo moto.
A person shall cease to be a refugee for the purpose of this Act if:
a. he or she voluntarily re-avails himself or herself of the protection of the country of his or her origin; or
b. he or she has become a citizen of India; or
c. he or she has acquired the nationality of some other country and enjoys the protection of that country; or
d. he or she has voluntarily re-established himself or herself in the country which he or she left, or outside which he or she remained owing to fear of persecution; or
e. he or she can no longer, because the circumstances in connection with which he or she was recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of his or her nationality.
a. Every refugee so long as he or she remains within India, shall have the right to:
b. Every refugee shall be bound by the laws and regulations of India.
a. The Government may, in appropriate cases where there is large-scale influx of asylum seekers, issue an order permitting them to reside in India without requiring their individual status to be determined under Section 11 of this Act, until such time as the reasons for departure from the country of origin have ceased to exist, or the Government decides that their status should be determined on an individual basis under this Act;
b. Asylum seekers who have been permitted to reside in India under this provision, may be subject to reasonable restrictions with respect to their location and movement but will otherwise be granted normally the same rights as refugees under this Act;
c. Women and children asylum seekers in mass influx shall have the right to be given special consideration as to their protection and material well being.
The Government shall not impose penalties on refugees on account of their illegal entry, or presence who, coming directly from a place where their life or freedom was threatened in the sense provided in Article 3, enter or are present in India without authorisation. Provided they present themselves with immediate effect to the authorities and are able to show good cause for their illegal entry or presence.
The repatriation of refugees shall take place at their free volition expressed in writing or other appropriate means, before the Commissioner of Refugees. The voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of transparency and safety to the country of origin shall be respected.
The Government may propose to Parliament, from time to time, rules and regulations, to give effect to the provisions of this Act.
The provisions of this Act shall have effect notwithstanding the provisions of any other law.
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