IMMIGRATION LAWS IN INDIA DURING THE CORONA CRISIS
The coronavirus outbreak has impacted all spheres of life, and
international travel is no exception. In fact, immigration issues are being
faced by increasingly large number of people across the globe because they are
stranded in countries they only planned to visit for a limited time, and now
cannot leave due to travel bans. As many as 120 nations worldwide have imposed
some form of travel restrictions to contain the spread of the virus. India is
one of those countries, and as a result, a large number of Indians are either
struggling to return home or are unable to travel abroad for essential reasons
as a consequence of the lockdown. The following questions aim to familiarise
people with the current immigration guidelines and options available to them.
1. What are the travel restrictions that have been imposed by the
state?
The Indian Ministry of Home Affairs through the Bureau of
Immigration has issued travel advisories and restrictions on March 3, 2020 and
April 15, 2020. A consolidation of those guidelines that is currently
applicable is as follows:
·
• All existing visas issued to nationals of any country except
those issued to Diplomats, Official passport holders, those in UN /
International organizations, those on Employment, Project visas and those who
are operating aircrew of scheduled commercial airlines, and who had not yet
entered India, stand suspended w.e.f. 1200 GMT on March 13, 2020 till May 03,
2020.
·
• No airline will bring any passenger from Austria, Belgium,
Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Iceland, Hungary, Ireland, Italy, Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom
effective 12.00 GMT on March 18,2020 at Port of Departure. No airline will
bring any passenger from Philippines, Malaysia and Afghanistan effective 15.00
IST on March 17, 2020 (Port of Departure). Transit from these countries from
that date onwards is not allowed either.
·
• Before the lockdown was imposed, employment and project visa
holders allowed from restricted countries were allowed to enter, but there are
complete travel bans in place now, both internally and outside the country.
·
• Diplomats, Official, UN/International Organization passports
holders fall within restrictions of all travel bans as well. Currently however,
there are highly limited means of entering or exiting the country.
·
• All incoming passenger traffic, on all 107 Immigration Check
Posts which includes all Airport ICPs, all Seaport ICPs all Land Port ICPs, all
Rail Port ICPs and all River Port ICPs, is prohibited, in the view of the
spread of COVID-19. Vehicles/Trains carrying goods for the trade or essential
goods and supplies are exempted from this prohibition along with their crew,
driver, helper, cleaner etc. subject to their thorough screening by the medical
staff for COVID-19.
·
• Overseas Citizens of India (OCI) Card holders have also been
restricted but validity of the cards of those already present in India will be
maintained.
[See all
advisories on the website of Bureau of Immigration, Ministry of Home Affairs,
Govt. of India, at https://boi.gov.in/]
2. What other travel advisories have been issued?
The Ministry of Health and Family Welfare has issued certain
other advisories regarding the requirement of certificate of having tested
negative from COVID-19 from the designated laboratories authorized by Health
Authority of these countries since March 10, 2020 till COVID-19 cases subside,
for all passengers travelling from / having visited Italy or Republic of Korea
and desirous of entering India.
The Ministry also notified a list of impacted countries, any
passengers travelling from there would be compulsorily quarantined. With the
lockdown in place for more than a month now, incoming cases from a abroad is
not of prime focus at least till May 3, 2020.[View complete travel advisory at
https://boi.gov.in/content/advisory-travel-and-visa-restrictions-related-covid-19-0]..
3. What should I do if I am a foreign national present in India whose
Indian VISA is expiring during the lockdown?
Foreign nationals can extend their Indian visas before expiry by
approaching their jurisdictional FRRO/FROs through e-FRRO (visit
https://indianfrro.gov.in/frro/). Additionally, there is no restriction on
foreign nationals from leaving India. However, they can return to India with a
fresh visa issued from and Indian Mission/Post only.
Thus,
foreign national’s visa can be extended for the course of the lockdown, and
they should explore options being offered by their home countries to return
back safely.
4. What should I do if I am an Indian national stranded abroad?
The Indian government has expressed concern over its stranded
citizens in countries across the globe, having retrieved a large number of its
citizens in the early weeks of March from affected countries. However, a much
larger number continues to remain stranded during this lockdown. Extension
of visas: The issuing and extension of visas is a subject
that falls entirely within the jurisdiction of the foreign nation being visited
by an individual. As a consequence, while the Indian government can make
requests for considerate treatment of Indians from these countries, it is
ultimately their own discretion.
Indian citizens must check and seek extension of their visas for
at least the period of lockdown in India, and the same can be done through
visiting the government’s immigration website of the respective country they
are stranded in. During this time of crisis, with close to a third of the world
being in lockdown, liberal extension policies are being adopted by majority
states.
Return to
India: Currently, no commercial airlines are transporting
passengers in and out of India. As recently as on April 23, 2020, the Minister
of State for External Affairs, Shri V. Muraleedharan requested that all Indian
nationals be patient till May 3, 2020, which is the end date of the lockdown,
and that the government will actively ensure their return.
Indian
nationals must therefore, seek visa extensions and wait till May 3 for the
state to give further clarifications on how they will be retrieved.
5. What should I do if I am a foreign national who necessarily needs to
visit India during this period?
The Bureau of Immigration has made certain exceptions to the
travel advisories issued. If an individual has compelling reasons to visit
India during the period of the lockdown and despite the spread of the global
pandemic, they are required to contact the nearest Indian Mission to them, and
seek permission accordingly. This decision to grant such a permission is
discretionary, and will be taken by the government based on the degree of
necessity, threat of spread of the virus as a result of the permission, etc.
Thus, if
an individual has compelling reasons to visit India during this period, they
may approach their nearest Indian Mission.
6. What should I do if I am an Indian national who has accepted
admission to a foreign university with my course beginning in Fall 2020?
Most universities offering admissions to international students
had already announced or were in the process of announcing their decisions for
the incoming batch of students in Fall 2020 when lockdowns across the world
were imposed.
The first thing that incoming students need to keep in mind is
that the laws of immigration are within the jurisdiction of the country
permitting entry. Thus, Universities will have to abide by the decision that
their governments take. This does not imply, however, that students will not be
granted entry. Attending University can be considered a fairly essential form
of travel, and once the restrictions are watered down, travel for education and
business is likely to resume much before tourism.
Therefore,
incoming students must wait for clarifications on the policy being adopted by
the country in which their University is located.
7. Will I be quarantined upon entering India?
The initial advisory stated that All passengers coming
from/transiting through UAE, Qatar, Oman and Kuwait after March 18, 2020 will
be quarantined, and so will passengers who have visited China, Republic of Korea,
Iran, Italy, Spain, France and Germany on or after Feb 15, 2020. The Bureau of
Immigration has further issued that anyone having even transited through the
above listed countries will be quarantined on arrival.
In recent times, the hotbeds of the infection have changed and
USA and UK have a large number of cases as well. Even for countries not on the
list, India’s travel advisory states that “Incoming travelers, including Indian
nationals, are advised to avoid non-essential travel and are informed that they
can be quarantined for a minimum of 14 days on their arrival in India.”
The short
answer to the above question, therefore, is YES. It will depend whether one is
directed to self-quarantine or kept in a state isolation centre, to be
determined on a case to case basis.
8. Are the strict travel restrictions imposed on the court legally
valid?
A challenge to the travel ban came up before the Delhi High
Court on March 21, 2020, wherein an individual seeking to retrieve his son
studying in Scotland challenged the correctness of the Order issued by the
Director General, Civil Aviation stating “No airlines shall board passengers
from these nations with effect from 1200 GMT on 18 March 2020”. In response,
the Court issued notice to Ministries of Health and Home Affairs and
Directorate General of Civil Aviation (DGCA) seeking their stand on the plea. [See Ramesh Chander Goyal v.
Union of India and Ors., WP(C) No. 2940/2020, Delhi HC]. Centre
informed the Court through its status report that in the present lockdown
situation it is not possible for the Ministry to organize any evacuation of
Indian Nationals from any Country. The report further stated Consulate General
of India at Edinburgh is working to help the stranded Indians through student’s
associations, community groups and individuals by providing all possible
assistance in the form of accommodation, food etc. The High Court was satisfied
with the centre’s response that adequate relief was being provided to Indian
citizens abroad, and disposed of the petition accordingly. Other High Courts
have also similarly disposed of such petitions.
The Supreme Court, on April 13, 2020, stated while hearing a
batch of petitions filed for evacuation of Indian citizens who are stranded in
different parts of the world due to COVID-19 outbreak, that these citizens
should “stay where they are”. [See Madhurima Mridul v. Union of India, WP(C) Diary No.
10842/2020, Supreme Court].
The
legality of the restrictions has been justified by the centre in the eyes of
the Court, and the state is not obligated to retrieve any citizens from foreign
countries for the time being.
9. How, and in what form, is international travel likely to resume?
More and more people have started exploring whether the spread
of the novel coronavirus is going to be the greatest set-back to globalisation,
and whether international trade will be able to return to its mammoth scale any
time soon.
This fears may be unfounded as some say things are likely to
return to the old capacity (depending on the strength of economies, of course)
once there is a vaccine. Another possibility being explored is as countries are
passing their peak phase, activities are beginning to resume. On April 7,
pictures emerged of bustling restaurant in Beijing in China, though people
seemed to be wearing masks. It may become necessary to have internationally
recognized tests and accredited laboratories to resume international travel.
If it is somehow proven that survivors of the coronavirus become
immune to subsequent infections and transmissions, an immunity certificate may
be a required document for international travel. Already the United Kingdom is
considering issuing “immunity passports” so people can leave the lockdown
early. The UN has also discussed this concept in some of its articles exploring
resumption of international travel and the long-term legal impact.
Thus,
despite the currently dire circumstances, there is a good chance that
international travel, and as a result business, may resume sooner than
expected.
By Shiv
Mangal Sharma
Advocate
Supreme Court
