COVID-19 IMPACTS ON IMMIGRATION DETENTION: GLOBAL RESPONSES INDIA: IMPACT OF COVID-19 ON IMMIGRATION DETENTION INTRODUCTION As of early September 2020, India recorded the world’s second-highest COVID-19 cases after the United States. The latest figures indicate that the subcontinent has over 5.6 million1 cases, with an average of 80,000 new cases being recorded every day. When the pandemic first hit the subcontinent in early March 2020, the government imposed one of the strictest and longest lockdowns in the world, which continued until the end of May 2020 with very few relaxations. In mid-March, the Supreme Court directed States to set up ‘High Powered Committees’ to consider releasing prisoners facing a maximum sentence of up to seven years on bail and parole. This was in acknowledgement of the fact that prisons in particular could potentially become hotspots for the spread of the virus owing to overcrowding, poor sanitary conditions, and lack of medical facilities. The Supreme Court also relaxed the conditions for their release, stating that detainees would only have to furnish a bond of Rs 5,000 (USD 67) with two sureties. In April 2020, the Supreme Court further directed the government to release “illegal foreigners” who have been under detention for over two years in the State of Assam (a North-Eastern State of India), an epicentre for immigration detentions in India. Releases would be conditional on detainees recording their biometrics and fingerprints, and reporting periodically at the nearest police station. The court also reduced the surety (or bail) amount to Rs 5000 (USD 67) from Rs 100,000 (USD 1360). Despite the circumstances that compelled the Court to issue the directive, it has been widely welcomed by human rights activists and is considered a positive step towards reforming immigration detention practices in India. In India, immigration detention is not different from criminal detention, since immigration violations are treated as criminal acts. In effect, immigration detainees are often kept in regular prisons, which is a violation of their rights under international law. 3 Under domestic law, migration-related detention can either be custodial or administrative. The former is used as a measure to secure appearance before a judicial body for the purposes of criminal prosecution. The latter is used in cases involving unidentified aliens/foreigners who are residing illegally in the country, as a measure prior to deportation. Over the years, courts in India have made attempts to ensure that detainees have access to basic constitutional protections, particularly those enshrined under Article 21 (right to life and personal liberty) which includes right to live with human dignity, access to medical facilities, a fair trial and legal aid through court orders. With these directives, detainees in theory would also have protection against torture and ill-treatment while in custody, and the right to bail during the pendency of their appeal. With regard to administrative detention centres, on January 2019, the Indian government released the Model Detention Centre Manual that requires States to ensure basic standards of protection, which includes access to essential services, medical facilities, and other adequate infrastructure. However, despite these guidelines, a number of administrative detention centres are still operated out of makeshift facilities within local prisons and there have also been reports of death of detainees due to poor living conditions and lack of adequate infrastructure.4 Further, due to the unavailability of timely, quality legal aid, poor mechanisms to review detainee’s legal status, as well as an inability to carry out deportations to home countries, several immigration detainees languish in detention centres for indefinite periods of time. IMMIGRATION DETENTION IN INDIA In the Indian context, “illegal foreigner” detainees often include refugees (who are yet to access the asylum process for a formal determination of their legal status) and/or survivors of trafficking who are subject to indefinite detention without access to asylum systems or humanitarian protections under domestic and international laws. India has a strong track record of hosting refugees, particularly in light of its assistance to Tibetan and Sri Lankan refugees, however, it does not have a law for asylum management. In fact, the law does not recognise refugees as a separate category of foreigners who are in need of international protection. Therefore, they invariably fall within the purview of the 1946 Foreigners Act and the 1967 Passport Act that allow the State wide powers to arrest a “foreigner” (defined as a non-citizen) for illegal entry or prolonged stay. In light of this, refugees in India are at a heightened risk of being subject to detention and deportation with very limited avenues to access justice systems. Typically, the sentences in such cases is detention for up to five years and/or a fine. The only relief in such cases has come through the courts which, through judicial activism, have treated refugees as a distinct group in need of asylum and have upheld the principle of non-refoulement. 2 RECENT DEVELOPMENTS Over the years, the situation has worsened with the introduction of ad hoc executive policies pertaining to refugee management and citizenship. In 2017, the government issued an executive order directing all enforcement authorities across the country to detect, detain, and deport refugees originating from the Rakhine State of Myanmar. This was followed by the drive to implement the National Register for Citizenship (NRC) policy in Assam which aims to document legal citizens of India and identify, detain and deport “illegal migrants”. Large immigration detention camps have been set up across India to detain those who were unable to prove their Indian citizenship. As of January 2020, a total of ten immigration detention centres are operational in the country, out of which six are in Assam. Latest media reports indicate that more such centres are likely to come up in Assam, Punjab, and Karnataka. 1 Coronavirus Cases in India, World O Meter, available at: https://www.worldometers.info/coronavirus/country/india/ (accessed as on September 23, 2020). 2 Non-refoulement is a customary international law principle that guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. 3 See, Article 9 of the United Nations International Covenant of Civil and Political Rights (ICCPR) which India has signed and ratified. 4 Defending Human Rights in Courts and Beyond, November 28, 2019, available at: https://cjp.org.in/ambiguous-guidelines-for-model-detention-camps-raisequestions/ (accessed on September 23, 2020). idcoalition.org | westernsydney.edu.au/hadri 27