Bureaucratic Gaps and Exclusion: The limits of documentary ‘protection’ for Rohingyas in India

Introduction

The Andaman Sea crisis of 2015 – where tens of thousands of Rohingya refugees were exploited by smugglers, pushed back and left stranded at sea – highlighted the unwillingness of many countries in Southeast and South Asia to offer protection to refugees displaced in the region. When the Myanmar military began another wave of genocidal assaults against the Rohingya in August 2017, more than 700,000 fled – primarily seeking shelter in Bangladesh. While Bangladesh offered refuge and humanitarian assistance to this persecuted community, other countries in the region again abandoned and excluded them, just as in 2015. 

At the same time as this violence in Myanmar, India – a host nation of tens of thousands of Rohingya refugees from 2012 and earlier – hardened its stance against the vulnerable group. The Indian government declared the Rohingya not as refugees, but ‘illegal migrants’, and stated their intention to deport Rohingyas back to Myanmar, while refusing to grant/renew Long-Term Visas. Although this intention of deportation is presently under challenge before the Supreme Court of India, the Indian government’s recent policies, particularly with respect to identity documentation for certain foreigners, have fomented everyday exclusion for the Rohingyas from basic services, as well as placing their refuge in India in a precarious position. Building on qualitative interviews with Rohingya refugees in Delhi (2017) and Hyderabad (2019), this commentary shares what marginalisation looks like on the ground for Rohingyas and argues that identity documents in India hold exclusionary and repressive consequences for them – putting Rohingya lives and dignity at risk, just as in Myanmar and in the Andaman Sea. 

Documents and Discrimination in Myanmar

As other articles in this Kaldor Centre series have highlighted, Rohingyas have been the target of state-sanctioned violence, persecution and citizenship-stripping in Myanmar for many decades. The everyday effects of such violence against the Rohingya community are also visible in the policing of their movement, and in the strict bureaucratic regulation of their bodies, relationships and interactions – negatively influencing almost every aspect of their daily lives.1 As highlighted by the Independent International Fact-Finding Mission on Myanmar, constituted by the UN Human Rights Council, in its report of September, 2018:

The control of the Rohingya does not stop at denial of legal status and severe restrictions on movement and access to food, health and education. It also affects their private life, including through marriage restrictions, birth spacing policies, and undue control on the building and repair of homes and religious edifices.2  

For instance, Rohingyas are required to obtain ‘Form 4’ authorisation to travel to/between towns in Myanmar. For movement between villages, they may also require a ‘village departure certificate’, which in any case is a document that needs to be submitted also for obtaining ‘Form 4’. These documents are in addition to the requirement for Rohingya to produce the National Verification Card (NVC) at the numerous security checkpoints encircling northern Rakhine. Failure to comply can result in harassment, arrest and physical violence.3  Such restrictions on movement have had a destructive impact on access to livelihood opportunities, humanitarian assistance, and education and health services.4  Indeed, nearly every aspect of Rohingya life is constrained by this bureaucratic documentary system headed by the State immigration entity.5  It is designed to impose repressive conditions on those who are regulated as ‘immigrants’ rather than as ‘citizens’.  

Caplan and Torpey shed important light on the ‘challenging’ relationship between the ‘emancipatory and the repressive aspect of identity documentation’.6 They argue that democracy can provide the checks and balances against bureaucratic repression, but when a nation is ‘[r]eleased from such constraints, especially if combined with a regime that enjoys extensive popular loyalty or that rules through widespread fear, bureaucratic domination can lead to disaster’.7 Thus, identity documentation, as a key instrument of the bureaucracy, becomes an instrument of subjugation. Yet, according to Caplan and Torpey, there are also advantages that come with identity documentation:

Individual identification procedures register voters, refugees, schoolchildren, and welfare recipients as well as conscripts and taxpayers; they ease mobility and communication as well as controlling these activities; and they enhance public security at the same time as they expose everyone to the dispassionate eye of official surveillance.8  

Natalie Brinham has traced the emancipation-repression-destruction trajectories of documentation for the Rohingya in Myanmar over the last several decades: from the National Registration Card (NRC) in pre-military rule years, which was viewed as emancipatory because it was on par with the documentation of other citizens; to the repressive Temporary Registration Card (or the ‘white card’), issued to the Rohingyas after their repatriation from Bangladesh in the 1990s, which was a separate identity card from the ones issued to full citizens of Myanmar; and then to the deeply repressive NVC, which the Myanmar government is imposing on the Rohingyas since 2015.9 The NVC is being resisted by Rohingyas who perceive the intention behind it is to destroy the identity of the Rohingya as an ethnic group belonging to Myanmar.10   

Brinham’s rich account portrays how the NRC is seen as a signifier of hope and of the real identity of Rohingyas as full citizens of Myanmar. Even though possession of an old NRC may place the holder at risk, one of Brinham’s respondents saves his father’s NRC as a reminder of hope, identity and future emancipation.11 For him, the NRC holds an emancipatory power, whereas the ‘white card’ and the NVC hold repressive and destructive powers.12  

As we highlight over the remainder of this analysis, a similar march towards repressive political and documentary processes can be seen at work in India, ultimately serving to undermine the prospect of safe and dignified humanitarian refuge for this stateless refugee group. Indeed, since August 2017, the Indian Government has declared Rohingyas to be ‘illegal migrants’,13 threatened the entire population of Rohingyas in India with deportation, and has managed to deport 12 Rohingyas back to Myanmar in two separate incidents across 2018-2019, resulting in international condemnation.14 These acts have occurred against a backdrop of increasing bureaucratic discrimination. The next section will lay out the legal framework applicable to foreigners in India that governs refugee documentation and Rohingya protection. This is followed by a focus on three important documents for Rohingyas in India: the Refugee Card, issued by the United Nations High Commissioner for Refugees (UNHCR) to certain refugee groups; the Long-Term Visa (LTV), issued by the Indian government to certain foreigners; and, the AADHAAR card (a biometric identity card [henceforth ‘Aadhaar’]), issued by the Indian government, and available to all legal residents in India.

State law and the role of identity documents for refugees in India

For States, legal frameworks built on regimes of identity documentation are often integral to controlling immigration and the conduct (from a security-surveillance point of view) and rights of foreigners in a country, including refugees.15  As India does not have a national legal framework on refugees, the law regulating the entry and exit of foreigners in India is primarily under the Foreigners Act, 1946; the Passports (Entry into India) Act, 1920; the Registration of Foreigners Act, 1939; as well as various Rules and Orders made under these legislations.16  A central feature of these laws is the strict requirement of the foreigner to possess ‘valid documents’, i.e., a passport and a visa with leave to enter and temporarily stay in India.17  In other words, if a foreigner has entered India without a valid passport or without permission to enter and stay through a visa, or has overstayed the period of the validity of the visa, the law entails that s/he becomes an ‘illegal immigrant’ and is at risk of detention and/or deportation.18  Therefore, first and foremost, the law bases itself on ‘valid documents’, disregarding any other consideration which accompanies the incoming foreigner, including humanitarian concerns. As Sterett quoting Coutin observed, ‘immigration law creates “spaces of nonexistence,” in which people are not legally resident in a country because they cannot document their presence…Without documenting their residence, they are legally not there, which makes much of what they do illegal’.19  

For refugees in India who do not have these ‘valid documents’, the immigration law framework provides certain exemptions. One such exemption is through the issuance of Long-Term Visas (LTVs) or a similar residence permit. Roy describes the origins of the LTV in post-independence India as a reconciler of the uncertainty around an ‘Indian citizen’ in the wake of the migration during and after the Partition of British India. According to her, the LTV was an instrument that gave permission to holders to settle permanently in India during the intervening period between Constitutional citizenship, as on 19 July 1948, and the enactment of the Citizenship Act of 1955.20  It was also bureaucratically important for the granting of Indian citizenship after the Citizenship Act came into effect, particularly for ‘liminal categories’ of people such as the ‘minority (Hindu) population “displaced” or “evacuated” from Pakistan and the Pakistani wives of Indian nationals’.21  LTVs were also issued within India when, for instance, the original short-term visa expired for the applicants.22  Thus, the LTV became a visa that was granted once a foreigner was in India in order to legalise the stay of its holder – and this was, importantly, also judged on the basis of ‘humanitarian concerns’ arising out of the Partition, and its aftermath. 

Such a policy of granting temporary residence permits or LTVs has continued to be applied to refugee communities escaping persecution on a case-by-case basis;23  though it was only under the Standard Operating Procedure (SOP) – laid down in an internal Indian Ministry of Home Affairs letter, dated 29 December, 2011 – that the grant of LTV was formally connected with ‘refugee’ situations, without any distinction on the basis of nationality.24  The SOP applies to foreigners ‘claiming to be refugees’ and has a wider definition of a ‘refugee’ than even the 1951 Refugee Convention, since it explicitly includes persecution on the basis of ‘sex’ and ‘ethnic identity’, incorporated from the proposed Model National Law on Refugees.25 At the same time, the Indian immigration bureaucracy has substantial leeway to dictate limitations26  – i.e., which refugee groups can be eligible for the LTV. Indeed, this year, the Indian government amended the LTV policy in order to improve access to the visa for persecuted ‘minority communities’ (i.e. non-Muslim groups) from Afghanistan, Bangladesh and Pakistan – which might be viewed as an expanded humanitarian initiative from the Indian government. However, the ongoing refusal to issue LTVs to Rohingyas indicates that the Indian government may continue to refuse certain refugee groups based on non-humanitarian considerations (particularly if that community falls within the government’s shifting ideological idea of an ‘illegal immigrant’).

Importantly, the LTV is similar to a standard visa with its own restrictions and only offers humanitarian leave to stay in India temporarily. Violation of any conditions of the visa, including restrictions on movement, may attract prosecution and possible deportation.27  Therefore, the LTV by itself is not an emancipatory form of identity document but is one which provides a legal safety net recognising the stay of a foreigner (refugee) in India. Nonetheless, it also prevents punitive bureaucratic measures which may lead to harassment, detention and deportation for the refugees in India. Rohingyas have been granted LTVs in the past – a point we shall return to shortly – but they have first been obliged to ‘prove’ their persecution through Refugee Status Determination and obtaining UNHCR refugee cards from UNHCR India.

UNHCR Refugee Card: effective but precarious

In Bangladesh, Rohingya refugees have been biometrically registered for identification cards jointly issued by the Bangladesh government and UNHCR, which are key enablers of access to resources and assistance for the Rohingya in the Cox’s Bazar refugee camps. Rohingyas have protested against this, and also against the possibility of the Bangladesh government and aid agencies sharing their details with Myanmar.28 In India, conversely, the government does not work with UNHCR in the issuance of the refugee cards, although it does specify which refugee communities UNHCR may register. The Indian government has continued to allow UNHCR to register Rohingyas, which highlights that the State finds it difficult to completely deny Rohingya persecution back in Myanmar. Moreover, this enabling of registration is even though India does not explicitly recognise principles of international refugee law and is not a party to the 1951 UN Refugee Convention and its 1967 Protocol. 

Yet, concerns remain over the potential sharing of information between UNHCR and the Indian government. An audit of UNHCR India’s operations earlier revealed that there were concerns that the organisation was sharing refugee information with the government.29  These apprehensions are worrying, particularly in recent times when the Indian government’s position towards Rohingyas has reversed dramatically, leading to the deportation of 12 Rohingyas in October 2018 and January 2019 (providing parallels with the situation around biometric cards in Bangladesh).

Nevertheless, UNHCR refugee cards enable Rohingyas in India to receive UNHCR’s humanitarian assistance, and certain other facilities which are available to every person in India, such as access to public hospitals and public schools.30  Without this identity document, Rohingyas cannot access UNHCR-partner NGOs and other local NGO and faith-based organisations (FBO) for assistance. In our interview with an FBO official, who manages a housing facility for vulnerable Rohingyas in Hyderabad, he stressed that admission to the facility was only for those Rohingyas who were registered with the UNHCR.31  Moreover, the role of UNHCR refugee cards as valid documents to obtain other key identity documents in India (or even as an identity document recognised by the local officials) is not certain. Incidentally, the UNHCR refugee card is not a shield from detention and at best limits punitive action against Rohingyas – though this depends on the discretion of the local authorities.32   A similar situation is evident in Malaysia, where the validity of the UNHCR refugee cards is being diluted and Rohingyas are finding themselves in an increasingly precarious position.33

The Indian government clarified in October 2018 that the UNHCR cards are not valid documents to obtain other forms of important documentation, such as Aadhaar cards (which we will turn to shortly). However, before this clarification, Aadhaar was being issued on the basis of UNHCR refugee cards and a valid LTV.34   After October 2018, many Rohingyas who had obtained Aadhaar cards on the basis of their LTVs or UNHCR refugee cards were made to surrender them, while several also faced prosecution for ‘fraudulent’ acquisition. Thus, the Indian government is breaking the essential link between the three key identity documents for Rohingyas in India, i.e., the UNHCR refugee cards, LTV and the Aadhaar – in effect undermining the protection framework applicable to refugees.

In any case, UNHCR refugee cards are a central identity document for the Rohingyas in India because it signifies that they are registered with UNHCR, and their country of origin is Myanmar. A respondent in Delhi told us how he feels that, just like for Indian citizens, the Indian government is responsible for taking care of them, the UNHCR refugee card gives them a sense that UNHCR is responsible for the welfare of Rohingyas.35   However, without the LTV, it is significantly limited.

Rohingyas in India: the LTV U-Turn 

The government of India granted LTVs to the Rohingyas under the SOP from 2012 onwards, based on their UNHCR registration cards.36   The granting of an LTV shielded the Rohingyas from detention and deportation as ‘illegal migrants’ and for entering and staying in India ‘illegally’. Further, it opened up opportunities to obtain other key identity documents and access certain basic rights, as noted above. However, our respondents, both in Delhi and Hyderabad, stated that since 2016-17, existing LTVs have not been renewed, and with no official explanation provided.37   Many respondents we spoke to have subsequently kept copies of their expired LTVs, which echoes Rohingya preservation of NRC documents in Myanmar as documented by Brinham.38   

For Rohingyas, the bureaucratic changes denying the benefits of the LTV bear directly on their precarious situation in India. Without a chance of ever having ‘valid documents’ under the law, they are at the behest of local officials’ humanitarian support to escape harassment and detention – particularly when they do not also possess UNHCR refugee cards (or when local officials refuse to recognise the refugee card and status).39  As told to us by a respondent in Hyderabad: 

[M]y husband was caught by a policeman who was going to take him away since we did not have any documents that time. It was only when I went there and pleaded with the policeman showing him my small children that he let us go. I thanked him profusely.40  

Moreover, the denial of the LTV has had a cascading effect on other claims to documentation. An LTV has become essential for all refugees in India to gain access to: Aadhaar, a driver’s license, a bank account, certain health and educational facilities, as well as to rent or buy residential and commercial property in India. For instance, without a driver’s license, Rohingyas are unable to take up any transportation jobs or legally acquire a vehicle for personal purposes. Without a bank account they are essentially excluded from an increasingly ‘cashless’ digital economy that India is aiming to become. These restrictions are undermining Rohingya opportunities for self-support and increasing their dependence on humanitarian aid. 

The reasons for the reversal of the LTV policy for Rohingya refugees are unclear. However, the government’s stance before the Indian Supreme Court in an ongoing case regarding the Constitutional protection for Rohingyas in India indicates a hostile turn in its outlook towards Rohingyas.41  The government has stated that it considers Rohingyas to be ‘illegal migrants’ under the law who are not entitled to protection in India for a variety of reasons that extend from: the threat Rohingyas pose to India’s national security; to the competition they pose to Indian citizens for jobs and other ‘limited resources’; to the accusation that the Rohingyas in India cannot be considered as refugees, as they apparently arrived from Bangladesh in search of economic prospects rather than for purely protection.42  The consequences of such a hostile outlook goes beyond a refusal of LTV – this political and documentary marginalisation creates ripples of fear among the refugee community. Brinham, drawing from her fieldwork with Rohingyas in Bangladesh, highlights the repercussions from the recent deportation of Rohingyas by India, linking the event with the destructive power of the NVC in Myanmar for Rohingyas:

The news that Rohingya that had been deported from India in 2018 were issued NVCs upon returning to Myanmar circu¬lated through the refugee camps and settlements of India and Bangladesh, causing concern.43

Rohingya exclusion from the AADHAAR framework 

Around the time that the Indian government changed their policy on granting LTVs to Rohingyas, Aadhaar, was gaining widespread prominence for every resident in India. Since its early iteration as a multi-purpose national identity card,44 Aadhaar has been pushed aggressively by the Indian government as a one-stop biometric identity verification card that is essential to strengthening linkages between public sector, private sector, and a range of financial and non-financial services, with the aim of improving governance in India.45  Aadhaar has even survived a constitutional review before the Indian Supreme Court, which, among others, challenged Aadhaar on the grounds of undermining the right to privacy.46  Although Aadhaar is not restricted to Indian citizens, its role as an identity verification tool for accessing a range of public and private services, jobs, etc., has meant that it has become one of the most relevant identity documents in India, and indeed, one of the world’s foremost identity documents in terms of number of enrolments. Further, Aadhaar is increasingly penetrating the (formal and informal) economy in multiple ways. Employers must now collect the Aadhaar details of workers and employees, and it is becoming the required identity verification document for access to many basic services.47  It has grown in significance to be ‘part of a programme of governance and ultimately aims to direct people’s behaviours in ways that contribute to both the well-being of the individual and the population as a whole…[t]o this end, India is attempting to create a digital system that is both comprehensive and secure’.48  

The Indian government has stated that refugees with valid LTVs are eligible to obtain an Aadhaar identification. However, this clarification has been provided by the Indian government only recently – and after it had reversed its position on granting Rohingyas LTVs. Rohingya exclusion from Aadhaar is having a devastating effect on Rohingya abilities to support themselves. One respondent in Hyderabad told us, ‘after problems in Jammu, the local employers started insisting on seeing my Aadhaar, knowing well that I did not have one and in spite of the fact that I had been working there for several years’.49  The respondent lost his job when he could not furnish the Aadhaar to his employer. 

In our interviews in Hyderabad, we also found that exclusion from Aadhaar had repercussions in access to education. For instance, there had been a lack of clarity around whether Aadhaar is required for a child to sit their 10th standard exams.50  Though this may have be an issue of bureaucratic uncertainty rather than deliberate exclusion, without Aadhaar cards Rohingya children had been prevented from taking 10th standard exams and advancing further in education. According to a respondent who had been trying to bring this to the attention of the authorities, ‘for students, delay in clarification means losing precious time and academic year’.51  Such a challenge is in addition to the huge hurdles Rohingyas face in accessing higher education in India. Another respondent, based in Delhi, explained that ‘Rohingyas are considered as foreigners when applying to Indian universities which have a higher fee prescribed for those who aren’t Indian citizens. This is almost impossible for Rohingyas to manage due to their financial condition’.52

Even participating in non-economic/leisure activities, which we have previously highlighted are essential to Rohingya wellbeing,53 can be thwarted by documentation restrictions. As a young interviewee who aspired to play football professionally, told us:

Two years ago I got selected, after a trial, in a big local football club here in Hyderabad but since I don’t have Aadhaar I couldn’t join them. ….during the time of taking our details, they asked me whether I have Aadhaar or a passport. When I replied that I only have a refugee card – they still tried by reaching out to the Indian Football Federation, which eventually rejected the request.54

Another respondent’s account summarises the potential value of Aadhaar for Rohingyas: ‘if we are provided with Aadhaar a lot of problems for Rohingyas will be solved, particularly the barriers which restrict us from being self-sufficient... it is true that Rohingyas do not want to permanently settle in India but we also do not want to be wholly dependent on charity during our stay in India and Aadhaar can ensure that does not happen.’55  A respondent in Hyderabad identified the Aadhaar with the NRC in Myanmar when he told us that, ‘before the Myanmar government changed the citizenship laws in 1982, we used to have ID cards just like your Aadhaar cards which recognised us as full citizens’.56  The Indian government’s exclusion of Rohingya from Aadhaar thus echoes and exacerbates the marginalisation trajectory that Rohingyas have faced with documentation in Myanmar.

Conclusion

Identity documents assume a different importance for Rohingyas when they leave Myanmar and arrive in India. In Myanmar, they are essential for citizenship and belonging; in India, identity documents are the key to accessing protection, rights and basic services. Yet what remains similar is the emancipatory/repressive/destructive powers that the Indian documentary regime share with that of Myanmar. Although LTV and Aadhaar together have the potential of enabling Rohingya refugees to live their lives with dignity in India until it is safe to return to Myanmar, a change in policy has denied Rohingyas the right to hold an LTV and has reduced that protection entirely. For some, this has led to forced deportation back to Myanmar, and for others, a renewed threat of looming deportation, as well as detention or denial of basic rights and services.

The Indian government is aware of the centrality of identity documents for refugees in India. This is clear in the government’s favourable change in policy towards refugees belonging to non-Muslim communities from Pakistan, Bangladesh and Afghanistan. Yet, they have created an unequal bureaucratic regime that makes a clear distinction between refugee groups, which has once more turned identity documentation for the Rohingyas into a tool of subjugation. Just as with the Andaman Sea crisis in 2015, this is another example of a refugee host nation actively undermining the prospect of safe humanitarian refuge despite international recognition that the Rohingya are the victims of genocide and ongoing persecution.