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Chinmayee Ashutosh Katre, B.A.,LL.B. from ILS Law College, Pune

The UN definition of international migrants includes both; the people who move out of their countries by choice and also those who are forced to move out of their home countries because of the fear or threat of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.[1]

Admission and settlement of refugees place a financial, physical and political burden on the host country. World over, wealthy nations have not given importance to the refugee situation because they waited for it becomes a crisis. They felt that regional crises have no global importance. When estimates for global migration are made, refugees are also counted. In 2019, India was one of the leading countries of origin with approximately 17.5 million people leaving the country for a plethora of reasons[2]. The top three host countries for Indian migrants are UAE, USA and Saudi Arabia. On the other hand, the US tighten its immigration policy about the H1B Visas. The reason cited by them was that preference should be given to US citizens before accepting people from other countries. Their ultimate motive was the protection of national interests. It is pertinent to the note that the US is not the only country that has incorporated stricter immigration policies. Many European countries have also done the same.

One recent nightmare of this crisis was the influx of the Rohingya refugees in India. In 2015, there were 10,000 of them in India and that figure doubled within two years. Myanmar’s policy towards them was hostile and they treated them as “illegal immigrants”. India realized that the infiltration of these refugees into the country was creating a burden on our economy. A large segment of the population already lives below the poverty line. Rampant unemployment augments this problem. In such a situation, I believe that taking the responsibility of another oppressed community would not have been in the best interests of India. At a time when India is working towards becoming a developed nation, it should solve its internal issues before reaching out to other nations. When Western countries point a finger at India about its policy towards refugees, they must look into their approach first. The USA has accepted less Syrian refugees than Brazil. Hungary followed similar lines when its Prime Minister said that refugees would be best kept out of Europe to keep its Christianity intact. Bentham was partially right when he said that humans are selfish and will only fend for their interests. They will not sacrifice their happiness at the cost of someone else’s happiness.

India is not a signatory to the 1951 Convention on Refugees and the 1967 Protocol Relating to the Status of Refugees. There is no separate statute for refugees. The Citizenship Amendment Act of 2019[3] was one step towards this. The aim of this Act was the protection of the minority communities of its neighbour countries viz. Pakistan, Bangladesh and Afghanistan. Being the second most populated country in the world, it cannot accept the burden of any and every person who enters its territory and wishes to stay there, merely based on humanitarian grounds. Moreover, India did provide financial aid to the refugees in Bangladesh. Since historical times, first Mughals and then the British usurped the territory of India. When the lesson was learnt the hard way, it was important for India to put its integrity above everything else. National security comes first because it is a ground for declaring National Emergency [4].

Furthermore, the UN principle of non-intervention exists only on paper. In reality, the wealthy and developed nations have always dominated the weaker ones. John Rawls while propounding his theory, attached importance to procedural laws. However, signing and ratifying conventions is not enough for achieving justice for the refugees.

John Rawls said that the procedural for the allocation of resources should be just. The concept of justice revolves around the allocation of goods, services and opportunities. Through the various conventions signed and ratified by countries, they have been guaranteed the substantive rights on paper. In practice, however, this has not been observed. The Syrian Civil War that started in 2011, displaced lakhs of people. The only way they could reach Europe was through smuggling. Many of them have died on the way, but smuggling was the only option for them. Many European countries legally closed their borders for refugees leaving them no place safe to go. Initially, the citizens of Europe welcomed the refugees. It is the ethical responsibility of the host countries after the refugees and to help them for a smooth transition and rehabilitation. But soon it was realized that it was creating a financial burden on the resources. The refugees and the natives compete for employment, and when they are unemployed they indulge in criminal activities. Cultural and geographical integration also does not occur in many cases. It takes a while for them to learn the language of the host country and assimilate with the local population. They also happen to live in different designated areas, due to their meagre income. They do not bother to respect hygiene standards because they are not aware of the same. For example, The suburbs of Paris that are inhabited by migrants are very unhygienic as compared to the central areas of the city. There are always two sides of the story and the tussle between humanitarian grounds and national security is far from its end. Hence, the solution to this problem in the words of the eminent economist is eliminating injustice. The root cause of this injustice must be identified and expunged. Ignorance about the causes when they are known is not justified.

Tangible territorial borders are not the only kind of borders that exist in the 21st century. Countries have increasingly closed their borders with the aid of economic and cultural barriers. The journey from being a migrant to becoming a citizen comprises of three stages. The first stage is the lawful entry of migrants into the host country. The second stage is when they gain the status of permanent residents. The third stage is when they acquire citizenship of the host country. Denmark requires its migrants to have basic knowledge about the Danish language and culture. The ceremony where the citizenship of migrants is confirmed requires a handshake with the presiding officials. Women of some communities are not allowed to come in any kind of physical contact with the opposite gender. The gates to citizenship have been closed for some migrants under the garb of such barbaric religious practices. Foreigners who want to come to the Netherlands are also required to have the basic knowledge of the Dutch language and culture. Migrants have no recourse to this kind of indirect discrimination.

The notion of ‘survival of the fittest’ has been replaced with ‘survival of the wealthiest’. On the other hand, countries like Malta have put their visas for sale, to attract wealthy investors. The government has not just permitted it but also facilitated the same. No one, however, talks about the dark side of this. This has been an easy passage for money laundering and creation of shelf companies. The United States also has a category of visas called the ‘Golden Visa’, which costs $1.8 million. States waive off the requirements for strict scrutiny of income and cultural integration for the wealthy members of the society. The medium that is kept ‘open’ for migrants is often the hardest course for them.

Until the 1990s, the movement of goods and people between Poland and Ukraine was easy because both the countries were a part of the Soviet Union. In 2004, Poland acceded to the European Union and became a part of the Schengen area. The European Neighbor Policy aimed at the integration of the eastern European countries in the EU on one hand[5]. On the other hand, it disrupted the easy passage of goods and people between Poland and Ukraine. Poland then introduced a travel visa for the citizens of Ukraine. It affected the trade relations between the two countries negatively. This is an excellent example of how open and close borders function simultaneously in this globalizing world. The strength of the passports is also an important determinant for open and closed borders. Wealthy nations have strong passports that provide open access to several countries. For example, the New Zealand passport holder is provided with a 30-day visa on arrival in the U.A.E. They also have a bilateral agreement with India for dual-citizenship. Time and again it is being reiterated that the financial strength of a country or an individual is the only decisive key to the doors that open borders. It has never been about justice because justice has always overshadowed the interests of the rich.

A personal example would be apt to explain this situation. Recently, my father was planning to shift to Belgium for his job. However, the barriers faced by him were innumerable. He required a medical fitness certificate which was not issued by the doctor until certain parameters were met. He had to present his bank statements to prove his financial independence and sufficiency. There were a plethora of other formalities involved as well. The result of this situation was that he had to change his decision about moving to Belgium, even though it was temporary. Gravity needs to be understood. If a highly skilled and competent, and law-abiding individual is being placed under such scrutiny, the plight of refugees can only be imagined, if not understood. In the present scenario, under the wrath of Covid-19, governments of 90% of the countries have taken to restricting migrants by introducing travel restrictions. This poses a question about the justification given by them for closing the borders. On one hand, we are on the path of normalcy while on the other hand; travelling to foreign countries is now a challenge. The juxtaposition of legal, social and economic factors is the dilemma today. Choosing between two principles of law is always difficult and somehow the notion of open borders can never be achieved until we move past this stumbling block.

[1] United Nations, Department of Economic and Social Affairs, Population Division (2019). International Migration 2019: Report (ST/ESA/SER.A/438)

[2] Id. at 3

[3] The Citizenship (Amendment) Act, 2019

[4] Article 352, The Constitution of India

[5] Bastian Sendhardt, Border Types and Bordering Processes A Theoretical Approach to the EU/Polish-Ukrainian Border as a Multi-dimensional Phenomenon