Gaps in India’s Treatment of Refugees and Vulnerable Internal Migrants Are Exposed by the Pandemic

India is at the crossroads of South Asia, with a long history of migration to, from, and within its borders. Yet its laws and policies have often appeared haphazard. On the one hand, the country experienced profound levels of forced migration during the 20th century, as people fled violence up to, during, and after partition with its South Asian neighbors, and it continues to be a safe haven for many migrants. However, India does not have a domestic law for asylum management, nor is it a signatory to the 1951 Refugee Convention. Thus, the government’s management of the estimated 250,000 current refugees and asylum seekers has been ad hoc, leaving many vulnerable to poverty and neglect. Denied access to much government-issued documentation, these humanitarian migrants are often excluded from formal systems for socioeconomic inclusion, and can fall into the margins of society, affecting not only themselves but future generations.

India’s internal migrants, who travel from less-developed regions to larger, industrialized towns and cities in search of better lives, are often no better off. According to the most recent census, in 2011, India had 456 million of these migrants, amounting to roughly one-third of its population. Despite being Indian citizens, many find that crossing a state border puts them in a condition on par with international refugees, since they often end up without a social protection net at destination.

This article examines and compares the conditions of humanitarian migrants and internal economic migrants in India. Their similar conditions have been made especially clear amid the COVID-19 pandemic, which prompted the country of 1.3 billion residents to enact the world’s largest lockdown. While these groups’ shared vulnerabilities defined their positions long before the pandemic, the coronavirus outbreak has exposed the fact that their predicament is linked to years of government neglect and a fundamental policy vacuum. When the country shut down, many people in both categories found themselves unable to access government services such as food rations and health care. Yet while these groups have suffered mightily, some refugees have found themselves harder off than others based on which entity granted them refugee status; regional political sensitivities that long pre-date the pandemic have resulted in one category of refugees managed by the Indian government and another by the United Nations High Commissioner for Refugees (UNHCR).

Refugees in India Face an Uneven Landscape

India does not have a law governing refugees. Instead, the framework for the management of refugees and asylum seekers remains ad hoc, with an unusual dual system in which the asylum caseload is divided between the government and UNHCR, with the government responsible for a larger share. Asylum seekers from neighboring countries, chiefly Tibetans and Sri Lankans, are managed directly by the government. Meanwhile, those arriving from all non-neighboring countries as well as Myanmar, which borders India to the east, are required to approach UNHCR for determination of refugee status and associated documentation. Most asylees under UNHCR’s jurisdiction are from Myanmar or Afghanistan.

Table 1. Recognized Asylum Seekers and Refugees in India, 2020

Note: Numbers from Tibet and Sri Lanka are for refugees registered and assisted by the government of India; others are for refugee and asylum seekers registered with the United Nations High Commissioner for Refugees (UNHCR).

Source: UNHCR, “India: 31-January 2020,” fact sheet, UNHCR, Geneva, January 2020, available online.

In addition to these recognized refugees, India is home to millions of economic migrants living in the country in irregular status. Official estimates for this population vary, although some suggest there are well more than 10 million irregular migrants—mostly from Bangladesh—who tend to cross the border without necessary documentation and cannot transition into legal residency. There is little official effort to draw a distinction between would-be humanitarian migrants in need of international protection and migrants who enter illegally in search of better economic opportunities. In countries with a more robust asylum protection system, some vulnerable migrants would likely intend to apply for asylum. In India, however, they are usually lumped in with the broader category of unauthorized immigrants.

All foreigners in India are governed by a few archaic laws, including the Foreigners Act of 1946 and the Passport Act of 1920. The government has wide powers of detention and deportation over these irregular migrants, without requirements to make distinctions based on humanitarian considerations.

This translates, in real life, to a lack of legal status for many refugees, asylum seekers, and would-be humanitarian migrants. Although the refugee status of some has been recognized by UNHCR, it is not always institutionally acknowledged by the Indian government, leaving recognition to the discretion of individual authorities at schools, health-care facilities, and elsewhere to weigh their particular needs. Many of these people exist in a legal gray area. Thus, they face daily struggles to access even the basic rights the central government has promised to extend to them. For instance, while one government school may admit a child who has been deemed a refugee by UNHCR, another may be well within its rights to deny admission on the basis that the child is an “illegal” resident. While this makes life difficult in the best of times, the COVID-19 pandemic has exposed the extent of these migrants’ precarity and vulnerability. Their ambiguous legal status left many unable to access medical care or government relief efforts, and when the lockdown cut off their income few had savings upon which to rely.

Internal Migrants Encounter Their Own Policy Vacuum

When it comes to internal migration, on paper the situation is naturally less dire. All Indian citizens are entitled to move freely within the country, and by all accounts more and more have been exercising this right. A very large proportion of internal migration is of men traveling to new areas for work, in response to India’s uneven economic development and limited pockets of industrialization across the vast territory. Many migrate with their families for survival, while others subsequently start and raise families in their host city. However, a significant number are single men who may return and depart from their place of origin depending on the availability of work there. Collectively, these internal migrants form the huge underbelly of India’s working class, often in the lowest-paid jobs, without employment guarantees, social security, or government assistance. They sustain India’s vast and largely informal economy while remaining mostly invisible themselves.

The government has previously tried to protect this group via laws such as the Inter State Migrant Workmen Act of 1979, which regulates the hiring, pay, and working conditions of internal migrants. However, the law has proved largely futile as its complex legal machinery can be bewildering to those it is intended to protect. Furthermore, it places the onus of ensuring that domestic migrants receive their entitlements on the same employers who may be responsible for exploiting them.

Shared Vulnerabilities

When these internal migrants move from their villages and small towns to larger urban centers, they face a host of challenges. Crossing a state border sometimes proves as difficult as crossing international boundaries does for asylum seekers, due to cultural and linguistic barriers (nearly two dozen languages are spoken in India), and because internal migrants may lose access to state-administered benefit programs, preferential educational opportunities, and other services.

Furthermore, many of these migrants’ shared challenges are common to refugee and migrant populations across the globe: poor living conditions and an inability to integrate that may take generations to overcome. However, people who face such problems migrating within their own countries are rarely included in international conversations on asylum and immigration systems. The 2018 Global Compact for Safe, Orderly, and Regular Migration endorsed by governments around the world under the auspices of the United Nations, for instance, does not  refer to internal migrants, although some may be in need of similar protections and guarantees as international migrants.

To focus on just one issue, lack of documentation is a common cause of problems for both internal migrants and asylum seekers in India. For the latter group, lack of legal recognition means they may not be eligible for documents issued to citizens, such as passports and voting cards. However, even in cases where asylum seekers might legally be able to obtain some documents, such as the biometric Aadhaar identification, government authorities may opt not to issue them. Regulations surrounding the Aadhaar explicitly state that it is not a proof of citizenship and can be issued to anyone who has been a resident of India for at least 182 days prior to its issuance. However, UNHCR-recognized refugees have been denied the Aadhaar on the grounds that they are not “legal residents” in India, which in itself is a legal catch-22 because the term “legal resident” is also not defined in the law. Meanwhile, unauthorized migrants are prohibited from obtaining an Aadhaar under a 2018 Supreme Court ruling.

Internal migrants can face similar difficulties obtaining the Aadhaar, since many have no documentation attesting to their residence in any place. These issues came to a head when the government made Aadhaar cards mandatory for accessing a host of public services and benefits such as education, advanced health care, bank accounts, employment, and even a mobile phone card. The Supreme Court overturned many of these requirements in its 2018 ruling, yet some institutions have continued to insist on the card as a requirement for receiving service. Needless to say, both refugees and internal migrants without the Aadhaar have found themselves excluded.

Another unifying thread for both groups is the intergenerational impact of exclusion and marginalization. While the children of refugees and asylum seekers may be able to enroll in government schools up to the secondary level, few—particularly those under UNHCR’s protection—have access to higher- or university-level education, which often requires additional documentation. Since Indian citizenship is based on the jus sanguinis principle of descent, rather than the birthright jus soli principle, children born to refugees in India are not necessarily citizens and might not have any better access to the system than their parents did. Similarly, the lack of employment security compels internal migrants to move periodically to look for work. Those moving with their young children are typically unable to ensure they attend schools regularly and acquire the knowledge and skills to obtain more stable livelihoods. As a result, social mobility remains very low for both groups.

COVID-19 Reveals the Holes in a Patchwork System

Given this background, the novel coronavirus pandemic has been a gamechanger in more ways than one. The strict and sweeping lockdown ordered by the government in March—which came with just a few hours’ notice—was devastating for humanitarian and internal migrants alike. For those in cities working for cash wages with little or no savings, the complete shutdown of economic activity meant an end to their income and means of sustenance. Usual channels of income such as providing interpretation, factory work, and in hospitality came to an abrupt halt, leaving many reliant on other refugees and asylum seekers who were better off. UNHCR provided some assistance to refugees under its protection, but not enough to replace their ordinary livelihoods. For would-be asylum seekers eyeing India as a destination, meanwhile, the lack of flights and public transportation made it impossible to cross international borders.

Asylum seekers and refugees also had little access to government systems for food distribution and rations, and at best uncertain access to health care. In fact, many reported to the author and others that they were afraid of approaching hospitals out of fear that they would be reported to police and labeled as illegal residents. As a result, as soon as international travel reopened in late May, UNHCR began receiving requests for help from those who were choosing to return to their countries of origin, where they might be vulnerable to persecution but could at least rely on limited family networks to sustain themselves on a daily basis, they told the author. For internal migrants, similarly, the lack of income left them without even basic food supplies, and the halt to transportation systems prompted millions to undertake journeys back to their native villages and towns, sometimes traveling on foot for hundreds of miles, in the largest such movement since partition decades ago, when an estimated 14 million people were displaced.

Asylum seekers’ exclusion from many relief efforts is not unexpected, given India’s ad hoc protection framework. However, the absence of aid for internal migrants was a surprise for many advocates, since laws and policies such as the Inter State Migrant Workmen Act were crafted to ensure their protection. These migrants are meant to be documented and registered in their host state and consequently entitled to benefits including equal wages, displacement and travel allowances, regular payments, provisioning of suitable accommodation, and free medical facilities. The pandemic exposed the extent to which the implementation of these laws has lagged. The reverse migration at this large scale following lockdown attracted significant domestic and international attention and prompted the Supreme Court to take action of its own volition to direct the government to provide food, shelter, and transportation to the migrants. This provided a temporary solution but left unanswered the larger question about migrants’ underlying vulnerability.

Looking Forward

As in many parts of the world, the COVID-19 pandemic has revealed the inherent and durable inequalities in Indian society and law. Given the size of India’s population, these inequalities have been magnified to the point where it is not unreasonable to claim that some Indian citizens are, in ways, neglected more than asylum seekers. International asylum seekers under the protection of UNHCR were provided food supplies and small allowances during the public-health crisis. For many internal migrants, even that limited relief was not available.

An event of the magnitude of the coronavirus outbreak holds lessons for policymakers and practitioners about ensuring that the most vulnerable have a reliable safety net. For one thing, a clear policy from the government at the outset would have been helpful. For instance, when Prime Minister Narendra Modi announced the lockdown on March 24, he merely requested that employers continue to pay their workers’ wages, particularly those with low pay. However, as the lockdown stretched on for two months and livelihoods were affected across the economic spectrum, it became difficult for employers to continue to retain workers, and the government offered insufficient assistance for many to do so. This economic squeeze was particularly harsh for internal migrant workers and asylum seekers, who are often paid on a daily or weekly basis and may move from one job to another in quick succession. For them, the loss of income began the very day after the lockdown and has continued for months during the economy’s sluggish recovery.

As of mid-2020, the economy had slowly begun reopening. It remains to be seen how many domestic migrant workers will once again trek to urban centers for work and when they will do so. Industries that often employ them have expressed confidence that they will return, given the poor economic conditions in their places of origin. Some already have. Yet a large number of internal migrants who returned to their places of origin have expressed that they are unlikely to leave in the near future.

Looking forward, some policies will likely change, such as those around work or public benefits available to workers. To encourage business, some states have already announced modifications to labor regulations that will increase the amount of time employees can work during a single shift or in one week. However, these changes could come at the cost of the health and safety of workers. The Indian government has been working on reforms to labor laws since well before the pandemic, although its objective has largely been to improve the environment for business rather than create stronger protections for laborers. The pandemic has exposed the vulnerability of these workers, who had previously been largely ignored in national discourse.

Given these apparent vulnerabilities, labor reforms should be crafted with a priority of ensuring workers’ welfare. For instance, occupational safety and health, previously an area of concern only on paper, should be given paramount importance in practice, especially in light of new norms around social distancing and the importance of early medical intervention to battle the outbreak. For asylum seekers, these legal reforms should not be limited solely to labor protections but also be more holistic, to include ensuring their legal status as residents in the country. The COVID-19 pandemic did not create the vulnerabilities of internal migrants and international asylum seekers, but rather exposed the challenges they have long been facing. If the government wants to safeguard these vulnerable populations, these underlying issues must be its target.

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