It is at times very difficult to understand the complexity of deportation under immigration rules across the world. Recently India faced denial of deportation request from the United Kingdom the High Profile case of Vijay Mallaya by virtue of their existing laws or simply put the Immigration Act, 1971. Under this Act, the United Kingdom does not require a person to hold a valid passport in order to remain in the United Kingdom if he has extant leave to remain in that country.
The world is a conglomeration of several nation States divided by different cultures, languages, ethnicity, religions, geography, boundaries and laws which lay down the basis of their governance and administration. In today’s globalized scenario of commerce and economic activity including technological advancements in travel and communications sectors has shrunk the world into a global village and open to exploration and exploitation by one and all.
This has also given rise to all sorts of undesirable elements looking for avenues and areas to expand their illegal activities or even fleeing from their countries to avoid prosecution for their misdemeanors there. In such an environment, systems have been evolved and put in place by various nations to regulate and restrict the activities of the visitors (foreigners) to their assigned or intended legal purposes, be it commercial, social, academics, religious, tourism or otherwise. Visitors and immigrants are expected to abide by the local laws and adhere to the limits specified in their visitation permits (valid visas). Any infringement of the above is dealt with by convictions and likely deportation of the defaulting individual.
The term Deportation is derived from a Latin word Deportare, which means Expel (foreigner or immigrant) from a country. It is the expulsion of an individual or a group from one country to another on the violation of the immigrant laws of the country. The term expulsion is expressly used as a synonym for deportation. It is often used in the context of International Law whereas the term Deportation is used in the context of National Law.
Types of Deportation
Deportation can be classified majorly into four main categories
- External Deportation: It suggests, to deport individuals between countries. In general, if any foreigner has committed a serious crime, entered the host country illegally, overstayed or violated any conditions of their Visa or have lost the legal status of being the resident of a country, they can either be deported or removed administratively.
- Internal Deportation: It suggests to deport an individual or a group of people within a state. In Internal Deportation an individual due to the violation of any law or due to the Rational thought they the individual or the group must be assisting the enemy, the state can resettle them in another part of the country. When the ethnic groups are affected by Internal Deportation they are respectively referred to as Population Transfer. During the Civil War, Georgia an American country, deported 400 female mill workers on the suspicion that they were Northern Sympathizers.
- Colonial Deportation: It becomes a special case when individuals are required to be deported to an overseas colony which is neither external nor internal completely. Around forty thousand religious objectors and criminals were deported from Britain to America in the year 1717, before the practice was ceased in the year 1776. It was after Britain losing their control over America that Australia became the new destination for criminals deported to British Colonies.
- Criminal Deportation: It suggests to deport a foreigner physically be removed from a country due to his criminal conduct or activity.
Acts dealing with the Deportation of an individual
The first enactment made to deal with the foreigners was the Foreigners Act, 1864, it provides for the expulsion and arrest, detention or pending removal, and if necessary ban on their entry into India after their expulsion.
The Passport (Entry into India) Act, 1920, gave the government the authority to make rules on the requirement of passports to be in possession of the individuals entering India. This Act also provided the government the authority to remove any person who entered the Indian jurisdiction without a passport.
It was during the Second World War that the Imperial legislative Assembly enacted the Foreigners Act, 1940 in which the concept of “burden of proof” was introduced. Section 7 of the Act provided that whenever a question arose with regard to the nationality of a person, the onus of proving that he was not a foreigner lay upon the person.
The Foreigners Act, 1940 was repealed and the legislature enacted the Foreigners Act, 1946. This Act conferred wide powers to deal with foreigners. This Act defines foreigners as a person who is not a citizen of India. This Act also empowers the government to introduce provisions for the prohibition, restriction and regulation for all foreigners entering the Indian jurisdiction. This Act also restricts the rights that were being enjoyed by foreigners in terms of their stay in the country if any such orders are passed by the authority. The most important provision in this Act is Section 9 which talks about the “burden of proof” which is applicable to all States and Union territories. It states that the onus of proving one is not a foreigner lies on the individual and not on the authorities.
The Foreigners (Tribunals) Order was introduced by the government in the year 1964. This gave the tribunals the authority to decide whether a person falls under the category of a foreigner in accordance to the foreigners Act, 1946. A tribunal has equal powers to those of a Civil Court. Therefore, it gives an equal opportunity to the person who is alleged for being a foreigner to produce evidence in support of his case, before passing the order. In June 2020, the Home Ministry made certain amendments in the Foreigners (Tribunals) Order, 1964 which empowered the district magistrates in all States and Union Territories to set up tribunals to decide whether a person staying illegally in India is a foreigner or not.
Illegal Migrants (Determination by Tribunals) Act, 1983 or the IMDT Act was introduced with the intention to detect and deport all illegal migrants who had entered India on or after March 25, 1971. This Act was proven unsuccessful as it did not contain any provision of “burden of proof” similar to that of the Foreigners Act, 1946.
Comparison of Deportation Law of India and UK
In the light of ongoing Vijay Mallya Case and others, we need to highlight the laws of Deportation in UK in particular as it has quite liberal provisions specially for those belonging to commonwealth countries. In the United Kingdom any person of foreign origin and residing there for five years or more will generally be subject to the Laws applied to the citizens of that United Kingdom and will not be deported even after being prosecuted for any offence. Therefore, due to this law, Vijay Mallya who has been residing in the United Kingdom since 1994 and alleged for various crimes and has been sought to be deported by the Indian government continues to reside in the UK. The government of India has to therefore seek his extradition which again has to go through rigorous legal process of that country.
Whereas in India, any immigrant or foreign resident or even a non-resident Indian (NRI) or a Person of Indian origin (PIO) having valid permit is liable to be deported in case convicted in any criminal offence or found to be indulging in any illegal activity or any activity not in consonance with the purpose for which he or she has been granted visa. In the UK, a person whose passport validity has expired can continue living there till his visa/work permit allows him to do so. Whereas in India, an individual is immediately deported once his passport/visa validity has expired.
Over a period of time India has evolved various rules and regulation to control illegal immigration and activities prejudicial to national interests and security by external elements that enter the country in the garb of carrying out social activities among poor and downtrodden by strictly enforcing the deportation provisions of the Foreigners Act.
The increase in criminal activities like terrorism, smuggling of arms, peddling of drugs etc. has reached a gargantuan proportion. Groups in the garb of social upliftment causing dissension, religious, conversions, sectarian strife and creating opposition to development activities at various levels are being gradually identified and sought to be debarred from their prejudicial activities by cancellation of their visas/permits and deportation.
Deportation per se has become a very important tool to preserve national interests and security. Vast numbers of illegal immigrants that have come in from Bangladesh, Burma etc. have been used by politicians to create vote banks and change the demography of the specific regions leading to huge burden on national resources and increase in unlawful activities. Various measures like NCR being envisaged by the government and firm resolve to deport them in due course calls for stricter deportation rules and their vigorous implementation.
Exponential growth of population through illegal immigration by unproductive masses has become a bane for the welfare and development of nation and requires to be attended to seriously notwithstanding the human rights issues.