The recent arrests of returning refugees under the United Nations High Commissioner for Refugees (UNHCR) voluntary repatriation by state agencies in Sri Lanka on the ground that they fled the island in boats without a valid travel document has drawn the attention of the public to the plight and future of Sri Lankan (Tamil) Refugees the world over but especially those living in camps in the neighbouring state of Tamil Nadu in India. UNHCR has also stopped their assistance to voluntary return as a response to this action by state authorities. Minister Bimal Ratnayake in response to questions in parliament from Tamil MPs has stated that these arrests are not government policy and has welcomed the Tamil refugees returning to their homeland.

Though this statement is welcomed by the refugees and returnees alike, words must be followed up by deeds and should be followed up by concrete action to facilitate return and reintegration. It must be recognised that this population with its skills and knowledge gained from being educated and working productively in Tamil Nadu the state with India’s highest GDP, can contribute to Sri Lanka economic development when provided basic durable solutions to facilitate their return.

Displacement

The July / August 1983 riots / pogrom targeting the Tamil speaking citizens of the Country marked the beginning of the refugee outflow from Sri Lanka to neighbouring India and also to the rest of the word including the West. Most affluent and English educated Tamils moved to Australia, Canada, the USA and European countries including the UK, while the less affluent including government servants, farmers, fishers and trades people fled across the narrow Palk Straits in boats to India. 1983 also marked the escalation of a non-violent struggle for the rights of the Tamil speaking people into the civil war between the Tamil militants and the Lankan armed forces. As the war progressed further waves of refugees fled to India.

In periods of relative peace some refugees returned to Sri Lanka, while some migrated to the west and Australia. At its height there were around 330 refugee camps in Tamil Nadu housing around 1.3, lakh refugees in the camps and another estimated 1 lakh living outside the camps. Today there are still over 100 camps and approximately 55,000 refugees living in the camps, and another estimated 30,000 living outside the camps. In 2009 the war ended with the defeat of the main militant organization the LTTE. It is now 16 years since the war ended and most of these Refugees are still living in camps and their status is undetermined. The recent arrests of refugee returnees in Sri Lanka has heightened the concerns of the Refugees as to their future in their homeland.

A Refugee

A refugee is defined in the 1951 Refugee Convention and its 1967 Protocol as “a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country, or who not having a nationality and being outside the country of his habitual residence as a result of such events is unable or owing to such fear unwilling to return to it.” The Convention envisages a case by case determination of the refugee status. India, Sri Lanka and other South Asian countries are not parties to the Refugee Convention. Hence the large refugee inflows have been allowed to remain in the country on humanitarian grounds and not on the basis of a judicial determination of whether the persons so fleeing come within the definition set out in the Convention. Hence while we refer to these persons as refugees they are not refugees “de facto” and not “de jure” as they fulfill the requirements set out in the Conventions definition.

In the case of de jure refugees they have certain rights in the host country, which are set out in the Convention. They have the right to work the right to education and importantly the right to apply for citizenship of the host country after a certain number of years stay in that country. The principle of non-refoulement, is also incorporated in the Convention. As it is a principle of customary international law it applies even to those countries which are not party to the Convention. It protects refugees from forcible deportation to a country where their life is in danger. We must recognize that many states including Sri Lanka and India have in practice acted with the humanitarian imperative and provided refuge to persons fleeing for their safety.

Legal Status

There is a misconception that just as Sri Lankan Tamils who sought refuge in western countries which are parties to the Refugee Convention have had their cases judicially determined and are in most cases now citizens of or have a permanent status in those countries, those in India have citizenship or legal status. In reality, most refugees in India still live in camps and have no legal status. Legally speaking, they continue to be under the Foreigners Act, foreigners who have entered the country illegally without documents i.e. Visa and passport. This position has been somewhat mitigated by the recent, Immigration and Foreigners (Exemption) order notified by the Union Ministry of Home Affairs. It exempts a set of people from the requirement of a valid passport or other valid travel document and valid Visa to enter, stay and exit the Country. It covers nationals of Nepal, Bhutan, Tibetan refugees, six religious minorities from Afghanistan, Pakistan and Bangladesh and Sri Lankan Tamil refugees who have entered India before January 9th 2015 and have registered themselves. The order protects the Sri Lankan refugees from forcible repatriation to Sri Lanka.

However, while this order protects this category from forcible repatriation it must be pointed out that they are still classified as illegal migrants. Furthermore, most Sri Lankan refugees are not eligible to apply for Citizenship. They are not eligible for Long Term Visas LTV and hence cannot apply under the Citizenship Act for Indian citizenship by registration or by naturalization by long residence. Sri Lanka is also not included in the countries i.e. Muslim majority countries namely Pakistan, Afghanistan and Bangladesh from which minority religious groups namely Hindus, Sikhs, Jains, Buddhists, Christians and Parsees, can apply for Citizenship under the Citizenship Amendment Act of 2019.

Care by the people and government

In contrast whatever the legal position might be, the people of Tamil Nadu and the Governments of Tamil Nadu and India were sympathetic and welcoming. There were also social benefits provided to the refugees in the camps. The Government provides each family shelter, a dole for their living, food rations were provided. Each family receives 20kgs of rice free and is provided with a ration card to buy their rations such as Sugar, Dhal and Oil from the public distributions system at cheaper prices and have access to free, state healthcare.

Furthermore, refugee children are eligible to study up to class 12 free and receive the benefits which the Indian children receive including free text books uniforms, noon meals, bus passes and even laptops and bicycles. Higher education is also available for those who meet the university requirements and earlier state governments even gave special quotas for refugee students in medical colleges now withdrawn. More recently Tamil Nadu Chief Minister Stalin has been building and renovating the housing in the camps.

Education

As a result of the liberal education policy of the state government, the refugee community has produced around 4,000 graduates including a few medical and several engineering and other professional graduates. This is a remarkable feat for a refugee community in any part of the world and much of the credit goes to the OfERR, an Organization run for and by refugees themselves in India since 1984. This organization through its advocacy with the state and central governments was able to get these advantages for refugee students while also running other programs such as preschools, tuition classes and student councils in the camps along with other charitable institutions thus fostering educational values within the refugee community.

While a few of these graduates have gone on to foreign countries many have returned to Sri Lanka with these qualifications and are involved in gainful employment some even in high positions. While they are not allowed to work in the public sector in India as they are not citizens many have got jobs in the private sector and others are self-employed benefitting and contributing to the Tamil Nadu economy and even contributing income tax. The Sri Lankan Tamils have always valued education and this is one of the reasons they would rather remain in India than return as opportunities for higher education are far less in Sri Lanka.

Caught in Limbo

Sri Lankan Tamils are thus caught in a bind although some of them have been in India for almost half a century from 1983, and have children and grandchildren born in the camps they are still legally speaking illegal migrants who have been allowed to stay in India on humanitarian grounds and who will not be punished for same because of an order made by the Home Ministry. This however could be changed in the future. This is why they can be said to be in Limbo, i.e. a place in Christian theology where Souls who are not eligible for Heaven or Hell are kept waiting indefinitely.

Demand for Indian Citizenship

Due to their long stay in India where many have made their lives and livelihoods and know no other, a growing number of refugees have begun to demand citizenship in India. Both the ruling DMK government and opposition AIADMK party have periodically supported this and demanded citizenship or permanent status for Refugees from the Indian central government. While a few individuals whose parents were entitled to Indian citizenship for different reasons including; they being people of more recent Indian origin or those who were slated for repatriation to India under the Sirmavo Shasthri pact have been successful, this has not materialized for all. An amendment to the law made in the time of former Minister of Finance P. Chidambaram in 1987 during the Congress era of central governance made the conditions for granting citizenship more stringent. Moreover, the grant of citizenship remains a matter of discretion of the central government and the present amendments do not indicate any changes in the position of the Sri Lankan refugees.

Voluntary Return

The Sri Lankan Tamils refugees also have an alternative path which is that of Voluntary Repatriation or Return to their home country Sri Lanka. The 1951 Convention does not explicitly provide a right of Return for refugees but it does recognize the principle of voluntary repatriation as a preferred durable solution.

The Convention encourages return to their country of origin under voluntary safe and dignified conditions. The Right to Return is however a Human Right recognized in the Universal Declaration of Human Rights. During the long drawn out civil war in the country there have been intermittent periods of relative peace during which there has been an increase in voluntary repatriation. For example between 1987—1989 some 25,000 refugees were repatriated and in 1992 – 1995 an estimated 54,000 were repatriated to Sri Lanka. Then in 1995 – 2002 around 23,000 voluntarily returned. With the end of the war also people started going back, but some have also since returned.

Obstacle course

Though the refugees may have fled in fear arriving in Tamil Nadu with little, they are now established economically and to an extent socially with lives and livelihoods be it, within the confines of a ‘Sri Lankan Tamil Settlement’ as chief minister Stalin has renamed the camps with new housing. Though consecutive governments in Sri Lanka have made statements welcoming return, the process remains an obstacle course for most with ever changing requirements, regulations and systems before and after return which those who have suffered the process confide as having driven them to despair and raising the question of the state’s (not just successive governments) commitment to the return of Tamil Refugees.

Then there are the economic challenges such as finding suitable jobs for educated and skilled young people especially in the aftermath of Covid and the economic collapse under the Gotabaya regime.

A number of young graduates who had enthusiastically returned during the Yahapalanaya regime and had secured graduate appointments lost them as the Gotabaya regime failed to distinguish refugees graduates cancelling their

appointments from state employment categorizing them among foreign graduates. Currently, there is no government program to provide support by way of housing or livelihoods for returning refugees most of all they are made to feel unwelcome of which an example is the state’s unwillingness to exempt refugees born in India who have past the age 21 to obtain their citizenship certificate from paying a fine of LKR 25,000/- a case of adding insult to injury. The certificate is essential for citizens born outside Sri Lanka to process documentation.

Durable Solutions

In this regard the OfERR organization along with others campaigning for the wellbeing of refugees and returnees in both countries reiterate that the government of India and Sri Lanka must ensure durable solutions to facilitate return. In order to strengthen the trust and confidence of the returnees, guidelines and circulars should be issued to the relevant authorities to ensure dignity of the returning refugees, and provide them due protection of the law instead of arresting them, also facilitate a speedy process for refugees to obtain birth and citizenship certificates among other documents practically required for obtaining travel documents and passports. Set up a process for receiving applications for obtaining National Identity Cards before return, design a suitable program to make use the educational and professional skills acquired by the refugees to enhance their own livelihood and contribute meaningfully to the development of the country; establish a mechanism for speedily obtaining equivalence for educational certificates and professional skills and make arrangements to ferry back their possessions, especially items useful to restart livelihoods the fruit of their labour in India. Formulate guidelines for return of lands, allotment of shelter and livelihood assistance and provide exemption so that returning refugee graduates are not barred access to state employment as foreign graduates. This would be particularly attractive to qualified, job seeking refugee youth. Finally include returning refugees in the welfare programs such as Asvasuma and provide dry food rations for a period in the aftermath of their return.

The right of return, reconciliation and reintegration

President AKD and his government won the hearts and votes of the Tamil speaking peoples of the northern, eastern and other parts of Sri Lanka by advocating a policy of equality and fair play for all ethnic groups and communities in Sri Lanka. The right of return is a basic human right recognized in the Universal Declaration of Human Rights. The fledgling state of Israel gave a right of return to all Jewish people scattered in the far corners of the earth but sadly continues to alienate and violate the rights of the Palestinian people, the consequences of this can be seen in the conflict which continues even today. It is both an example and a lesson for Sri Lanka to welcome back all those who fled or were forced to flee due to a bitter civil war in a spirit of brotherhood and reconciliation. The time is ripe for him to translate words into deeds welcoming home the long exiled Sri Lankans and ensuring they finally find a place once again in the land they still call home.

* LL.B. Cey; LL.M Cantab; Ph.D Col; Attorney–at-Law.

by Dr Nirmala
Chandrahasan