Refugees and Statelessness: Non-Refoulement and India

A refugee is a person who has fled persecution and cannot rely on the protection of his own state. International refugee law gives such persons a status and, above all, protection against being sent back to danger. Stateless persons, who are not nationals of any state, face related problems. This note covers the 1951 Convention, non-refoulement, statelessness, and India's approach as a state outside the Convention.

1. The Refugee Convention

• Instruments. The Convention relating to the Status of Refugees, 1951 applied to events before 1 January 1951 and allowed a European limitation; the Protocol of 1967 removed both limits.
• UNHCR. The Office of the UN High Commissioner for Refugees, set up by the General Assembly in 1950, supervises the Convention and protects refugees; in India, it registers refugees from countries other than immediate neighbours.

Figure 1: The Convention definition (Article 1A(2))

• Cessation, Article 1C. Refugee status ends, for example, if the person voluntarily re-avails himself of his country's protection or the circumstances leading to recognition have ceased.
• Exclusion, Article 1F. The Convention does not apply to persons seriously suspected of crimes against peace, war crimes or crimes against humanity, serious non-political crimes outside the country of refuge before admission, or acts contrary to the purposes of the UN.
• Rights. Including non-discrimination, access to courts, work, education and travel documents; no penalty for illegal entry if the refugee comes directly and presents himself without delay (Article 31); expulsion of lawful refugees only on national security or public order grounds with due process (Article 32)
• Wider definitions. The OAU Convention, 1969 adds persons fleeing external aggression, occupation, foreign domination or events seriously disturbing public order; the Cartagena Declaration, 1984 does similarly for Latin America; internally displaced persons, who have not crossed a border, are covered by the Guiding Principles, 1998.

2. Non-Refoulement

Article 33(1) provides that no contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. It is the cornerstone of refugee protection.

Figure 2: Sources and scope of non-refoulement

• Soering v United Kingdom (ECtHR, 1989). Extraditing a German national to Virginia, where he faced the death row phenomenon, would violate Article 3 of the European Convention.
• Chahal v United Kingdom (ECtHR, 1996). The prohibition on return to a risk of torture is absolute, even for a person considered a threat to national security.

3. Statelessness

• Definition. A person who is not considered as a national by any state under the operation of its law (Article 1, Convention relating to the Status of Stateless Persons, 1954)
• Reduction. The Convention on the Reduction of Statelessness, 1961 requires states to grant nationality to persons born in their territory who would otherwise be stateless, and limits deprivation of nationality.
• Rohingya. The Rohingya are largely stateless as a result of Myanmar's citizenship law of 1982, and many have sought refuge in Bangladesh and India.

4. India's Position

• Not a party. India is not a party to the 1951 Convention, the 1967 Protocol or the statelessness conventions, though it is a member of UNHCR's Executive Committee.
• No refugee law. Foreigners, including refugees, are governed by general immigration law; the Immigration and Foreigners Act, 2025, in force from 1 September 2025, replaced the Foreigners Act, 1946, the Passport (Entry into India) Act, 1920, the Registration of Foreigners Act, 1939 and the Immigration (Carriers' Liability) Act, 2000.
• Practice. India has hosted large refugee populations, including Tibetans since 1959, Sri Lankan Tamils and Chakmas, through administrative arrangements rather than statutory rights.
• Constitution. Articles 14 and 21 protect all persons, including foreigners, but the right to reside and settle under Article 19(1)(e) belongs only to citizens.

Figure 3: Indian decisions on refugees and foreigners

In Mohammad Salimullah v Union of India (8 April 2021), the Supreme Court refused interim relief against the deportation of Rohingya detained in Jammu. It accepted that national courts may draw on international law where it is not in conflict with municipal law, noted that India is not a party to the Refugee Convention, and directed that deportation follow the procedure prescribed by law.

5. Frequently Asked Questions

Is India bound by the principle of non-refoulement?

India is not a party to the Refugee Convention, but it is a party to the ICCPR, and several High Courts have treated non-refoulement as customary law or part of Article 21. The Supreme Court in Salimullah (2021) did not apply it to stop deportation, holding that the right not to be deported is linked to Article 19(1)(e), available only to citizens.

Is an economic migrant a refugee?

No. The Convention protects those with a well-founded fear of persecution on grounds of race, religion, nationality, social group or political opinion, not those who move only to improve their economic position.

6. Related Topics

• Topic 38: Nationality. Statelessness and the right to a nationality.
• Topic 41: Extradition. Extradition and non-refoulement.
• Topic 42: Asylum. Territorial and diplomatic asylum.