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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