Judicial Practices The use of judicial orders to apply discretion in the application of immigration law toward individuals with protection needs, while undoubtedly a stop-gap measure, nevertheless provides meaningful safeguards where more durable, legislative protective status frameworks are unavailable. In India, refugees and asylum seekers are vulnerable to arrest and detention under the 1946 Foreigners Act if they are stopped by authorities before they can present their claim for asylum to the UNCHR. Refugee populations in India that fall under the UNHCR’s mandate (as defined by the Indian government) are, at the discretion of the courts, sometimes permitted to request refugee status determination while in detention, but this is not always sufficient to secure release. For example, while the Gauhati High Court in U Myat Kayew v. State of Manipur allowed a Burmese asylum seeker to be released from detention in order to access UNHCR to present their claim,101 there have been instances where asylum seekers have been detained or issued a summons to leave the country on the basis of undocumented stay, despite holding a valid UNHCR-issued refugee card.102 INDIA In Yogeswari v. State of Tamil Nadu, the Madras High Court held that detention under Section 3(2)(e) of the Foreigners Act of 1946 may not violate Article 21 (right to personal liberty) or Article 22(4) of the Constitution of India (providing limits on preventive detention).103 The petitioner was a Sri Lankan refugee who was granted bail by a lower court after being charged under the Indian Penal Code. Before his release on bail, he received a detention order issued under the Foreigners Act. Holding that constitutional guarantees prevail over the unrestricted powers of detention granted by the preconstitutional Foreigners Act, the court quashed the detention order. BANGLADESH The High Court of Bangladesh found in Faustina Pereira v. State (2001) that holding a non-citizen prisoner in jail after they have served their sentence violates the rights conferred upon them by the Constitution of Bangladesh. In Refugee and Migratory Movements Research Unit (RMMRU) v. the Government of Bangladesh (2017), the High Court held that indefinite detention of foreigners is unlawful, ordering the release of five Rohingyas and directing the petitioner to take appropriate steps to accommodate them in Rohingya camps in Cox’s Bazar. 27 UND OING PRECARIT Y: ELE VATING P OSITIVE PR ACTICES FOR REFU GEE PROTECTION IN SO U TH AND SO U THE AST ASIA