A/HRC/WGAD/2024/58, Opinion No. 58/2024 concerning Mohammad Arfat (India)

Opinion; Subjects: INDIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.25-04181 (E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its 101st session, 11–15 November 2024

Opinion No. 58/2024 concerning Mohammad Arfat (India)*

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

In accordance with its methods of work, 1 on 16 July 2024 the Working Group

transmitted to the Government of India a communication concerning Mohammad Arfat. The

Government replied to the communication on 13 August 2024. The State is a party to the

International Covenant on Civil and Political Rights.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States Parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination, based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

* Mumba Malila did not participate in the discussion of the case.

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2024/58

General Assembly

Distr.: General

26 March 2025

Original: English

A/HRC/WGAD/2024/58

Submissions

(a)

Communication from the source

Mohammad Arfat, a Rohingya Muslim originally from Myanmar, born on 1 January

1993, is a refugee accredited by the Office of the United Nations High Commissioner for

Refugees (UNHCR). Mr. Arfat is a humanitarian worker and human rights defender who has

been detained in India since 23 December 2020.

(i)

Context

The source attests that the detention of Mr. Arfat is punitive and discriminatory, on

the basis that he remains in detention despite not currently serving any criminal sentence,

with no real prospects of judicial review of his circumstances and his detention. The source

alleges that Mr. Arfat’s ongoing detention is attributable to his ethnic and religious identity

as a Rohingya Muslim.

In this connection, the source explains that Mr. Arfat fled Myanmar for Bangladesh

in 2012 following the indiscriminate killing of Rohingya people, including Mr. Arfat’s father,

by security forces of Myanmar.

Subsequently fearing for his safety in Bangladesh in the context of the lack of security

in refugee camps in the Cox’s Bazar district and pressure to join militant groups, Mr. Arfat

relocated to India in 2013. While in India, Mr. Arfat worked as a translator and community

mobilizer with the Development and Justice Initiative, a non-governmental organization

partnered with UNHCR. When this non-governmental organization ceased operations in

2018, Mr. Arfat could not find sufficient work in India to maintain his livelihood. At the same

time, the Government of India had begun to ask him to produce documents issued by the

authorities of Myanmar, as well as other biometric data, in a manner that led Mr. Arfat to

fear for his safety and security as a member of the Muslim minority in India. For these

reasons, he elected to return to Bangladesh for what he understood to be better employment

opportunities and a safer environment.

In Bangladesh, Mr. Arfat worked with the Centre for Peace and Justice between May

and October 2019. However, he began to feel unsafe again due to the rising crime level in

the refugee camps. The source reports that, around that time, the camps in Bangladesh

experienced a marked increase in abductions of and threats against human rights defenders.

As a human rights defender, Mr. Arfat received threats from different militant groups. In

October 2019 and August 2020, one such group reportedly asked him to work with them, but

he refused. In response, the group warned Mr. Arfat “not to raise his voice against them”,

implying that his refusal to join or to assist it could jeopardize his safety. These threats to his

safety led Mr. Arfat to seek to return to India, where members of his family reside.

(ii)

Arrest and detention of Mr. Arfat

On 23 December 2020, when the Assam police arrested Mr. Arfat, he was fleeing

Bangladesh and entering India. When Mr. Arfat was on his way to the Naka checkpoint in

Assam, security forces reportedly detained several individuals belonging to the Rohingya

community. As a human rights defender, he sought to resolve the situation, thinking he could

advocate on their behalf given that they were refugees.

10.

On that day, at around 9.30 p.m., the police stopped and arrested Mr. Arfat at the Naka

check point in Karimganj, Assam. Six other individuals of Rohingya ethnicity were also

arrested. The police officials did not show any warrant or other decision by a public authority.

11.

Mr. Arfat was taken into custody and questioned by seven or eight police officers. He

was reportedly physically assaulted during the interrogation. The police questioned why

Mr. Arfat had travelled to India rather than to other countries. Mr. Arfat explained his refugee

status, presenting his UNHCR refugee card and other documents verifying his work as a

human rights defender, and explained that he was returning to India because he was fearful

for his safety in Bangladesh. He further explained that his refugee status was due to him being

a Rohingya in Myanmar and having fled violence in that country. He explained that, for that

reason, he had no other relevant travel documents.

A/HRC/WGAD/2024/58

12.

The Assam police authorities reportedly informed Mr. Arfat that he was an illegal

migrant because the Government of India did not recognize UNHCR documents, and that he

would be detained for violating Indian immigration law, namely section 14 of the Foreigners’

Act 1946, and rule 6 of the Passport (Entry into India) Rules 1950.

13.

Mr. Arfat was briefly presented before a court before being transferred back into

police custody. He was interrogated by various government officials from the Assam police,

Indian border guards and officials from other unknown divisions from the Government of

India during a further two to three days in police custody. He reportedly continued to be

treated with hostility and assaulted by the authorities during this time.

14.

Reportedly, the authorities asked Mr. Arfat whether he was affiliated with a non-state

armed group. He replied unambiguously that he was not affiliated with that group in any way.

The source reports that Mr. Arfat and the other detainees belonging to Rohingya ethnic group

were not provided with food or medical care.

15.

After two or three days in police custody, the authorities transferred Mr. Arfat to

Karimganj District Prison, where he remained in detention until May 2022. During his

detention at Karimganj District Prison, Mr. Arfat was reportedly provided with food only on

an irregular basis and had limited access to healthcare. His personal belongings were taken

from him, and he was not permitted to use a phone or contact his family.

16.

Mr. Arfat eventually retained a lawyer, who promised to secure his release. After

various court hearings, the lawyer was unsuccessful. Mr. Arfat continued requesting hearings

before Karimganj District Court to plead his case as a refugee but was unsuccessful.

17.

After more than 500 days in detention, in May 2022, a judge of Karimganj District

Court convicted Mr. Arfat of violating section 14 of the Foreigners Act 1946, and rule 6 of

the Passport (Entry into India) Rules 1950. Mr. Arfat was sentenced to imprisonment for one

year and a fine of 1,000 rupees for violating the Foreigners Act 1946, and imprisonment of

one year under the Passport (Entry into India) Rules 1950,2 to be served concurrently and to

be set off against the time Mr. Arfat had already spent in detention.

18.

Furthermore, “the Deputy Commissioner, Karimganj, and the Superintendent of

Police, Karimganj, are hereby asked to take steps as per law after serving out the period of

imprisonment by the convict” and “as the matter in hand is of national concern, let a copy of

this order be sent to the Ministry of Home Affairs, Assam, as well as the Ministry of Home

Affairs, India, for information and for doing the needful as per the existing law of the land”.3

19.

The source explains that, therefore, almost two years after he was detained, Karimganj

District Court convicted Mr. Arfat and sentenced him to one year in prison. The court held

that the time he had served satisfied this sentence, and his fate was turned over to the police

and the Ministry of Home Affairs to be decided according to Indian law.

20.

The source notes that section 3 of the Foreigners Act 1946 allows the Government of

India to indefinitely detain and confine individuals determined to be foreigners.

21.

Immediately upon his conviction in Karimganj District Court, Mr. Arfat was

transferred from Karimganj District Prison to Silchar Central Jail, where he remained until

12 March 2023. On 12 March 2023, he was transferred to the Goalpara Matia Detention

Centre, where he remains to date.

22.

According to the source, at the Goalpara Matia Detention Centre, Mr. Arfat is

constantly monitored and has limited contact with his family and the outside world. The

source reports that Mr. Arfat is also afforded limited access to medical care and insufficient

food. The source expresses concern for Mr. Arfat’s deteriorating state of mental and physical

health.

23.

Mr. Arfat has no official record of any order for his detention after Karimganj District

Court declared his sentence completed. The source is not aware of any order from any Indian

court authorizing Mr. Arfat’s continued detention after May 2022.

2 Order Sheet, Additional Chief Judicial Magistrate, Karimganj, Case No. 3329 of 2020.

3 Ibid.

A/HRC/WGAD/2024/58

24.

Mr. Arfat’s family have petitioned Guwahati High Court in Assam for his release. In

response to this petition, the Deputy Secretary of the Government of Assam, Political (B)

Department, submitted an affidavit attesting that Mr. Arfat’s detention was necessary until

such time as his nationality could be verified by the authorities of Myanmar and his

deportation from India could be effected.

25.

According to the affidavit and the official documentation attached to it, the

Undersecretary to the Government of India, Ministry of Home Affairs, Foreigners Division,

confirmed that “till such time his nationality is verified, and deportation is completed, his

movements needs [sic] to the [sic] restricted in a detention centre to ensure his physical

availability for deportation”. Furthermore, the affidavit confirmed the Ministry of Home

Affairs position that “verification of nationality is a sovereign function of the foreign

Government, no time limit can be fixed for completion of the process of nationality

verification”. The Government of India has stated that it has contacted the Government of

Myanmar for information about Mr. Arfat’s nationality but has not received a response.

26.

Attached to the Deputy Secretary’s affidavit was a letter from the Ministry of Home

Affairs of India, referring to consolidated instructions and guidelines regarding illegal

migration of foreign nationals and the procedure to be followed for their deportation. The

proceedings in Guwahati High Court are ongoing and have been adjourned on multiple

occasions.

27.

The source therefore concludes that Mr. Arfat remains detained in the Goalpara Matia

Detention Centre on the orders of the Ministry of Home Affairs of India. The source alleges

that the conditions in which he remains detained in India are substandard.

28.

The detention centre can house up to 3,000 people and is surrounded by two walls,

the inner wall being twenty feet high and the outer wall six feet high. It has six watchtowers

for round-the-clock monitoring. Mr. Arfat is separated from his family. He and the other

detainees are not given proper medical care, and conditions in the numerous similar

“foreigner” detention centres in India are reported not to meet international standards,

including for basic amenities, such as food, and education for children.

29.

According to the source, Mr. Arfat’s detention is, consequently, indefinite in nature.

Mr. Arfat will be detained in India with no prospect of release until the authorities of

Myanmar verify his nationality and he can be deported to Myanmar. However, the source

contends that it is highly unlikely that the Myanmar authorities will confirm Mr. Arfat’s

nationality because of his ethnic and religious identity as a Rohingya Muslim and the practice

of the authorities of Myanmar of denying Rohingya the right to nationality.

(iii)

Legal analysis

30.

The source argues that Mr. Arfat’s detention is arbitrary and falls under categories I,

II, III, IV and V of the Working Group on the basis of its indefinite nature owing to

Mr. Arfat’s status as an asylum-seeker from Myanmar and the relationship between

Mr. Arfat’s detention and his identity as a Rohingya Muslim.

31.

In relation to category I, the source submits that there is no proper legal basis for the

deprivation of Mr. Arfat’s liberty. It recalls that in recent opinions evaluating submissions

under category I, the Working Group has recalled that it has repeatedly stated in its

jurisprudence that, even when the detention of a person is carried out in conformity with

national legislation, the Working Group must ensure that the detention is also consistent with

the relevant provisions of international law. 4 Where provisions of a State’s domestic

legislation violate international law, the Working Group has found, proprio motu, that

detention under such legislation is arbitrary under category I.5

32.

The source acknowledges that section 3 of the country’s Foreigners Act 1946 provides

that the Government may prohibit, regulate or restrict the entry, presence or departure of

foreigners in India. In particular, pursuant to section 3 (2), the Government is empowered to

order that foreigners be arrested, detained or confined without any specified period of

4 See opinion No. 8/2023.

5 Ibid., para. 67.

A/HRC/WGAD/2024/58

limitation. In this context, the source recalls that the United Nations High Commissioner for

Refugees has noted that under the Foreigners Act 1946, asylum-seekers “can be subjected to

prolonged detention even after completion of their sentence”.6

33.

UNHCR has also determined that “the Foreigners Act 1946 applies to all classes of

foreigners, including refugees and asylum-seekers. It does not provide exceptions for

asylum-seekers from penalties for entering the country without the required documentation,

which is at variance with international standards.”7

34.

Moreover, the Working Group has stated that “the irregular entry and stay in a country

by migrants should not be treated as a criminal offence, and the criminalization of irregular

migration will therefore always exceed the legitimate interests of States in protecting their

territories and regulating irregular migration flows”.8

35.

Despite these governing standards under international law, the Foreigners Act 1946

criminalizes illegal entry and stay in India by migrants and refugees. The source recalls that

Indian authorities sentenced Mr. Arfat to one year of imprisonment for committing just such

a crime and continue to detain him under section 3 of that same Act after his completion of

that sentence.

36.

Additionally, Mr. Arfat served a sentence for violating rule 6 of the Passport Rules

1950. The source notes, however, that rule 6 of the Passport Rules 1950 is no longer in effect,

after it was omitted from the Passport Rules 1980. 9 According to the source, because

Mr. Arfat served a sentence for a crime that no longer existed under Indian law, there can be

little doubt that his sentence and confinement pursuant to rule 6 of the Passport Rules 1950

also lacked sufficient legal basis.

37.

The source concludes that, on the whole, Indian authorities lacked sufficient legal

justification under the Foreigners Act 1946 to detain Mr. Arfat at any point in time because

that legislation exceeds the limits determined by international law. The authorities also lacked

sufficient legal justification under rule 6 of the Passport Rules 1950 because that law no

longer retained legal effect under Indian law. Therefore, at all times and continuing to this

day, it was and remains impossible for the authorities to invoke any legal basis to justify the

deprivation of Mr. Arfat’s liberty. His detention is thus arbitrary under the Working Group’s

category I.

38.

In relation to category II, the source argues that Mr. Arfat’s detention is arbitrary

because it is the result of his exercise of fundamental rights and freedoms guaranteed to him

under international human rights law. In particular, Mr. Arfat’s detention stems from his

exercise of the right to freedom of movement and the right to leave any country under article

13 of the Universal Declaration of Human Rights and article 12 of the International Covenant

on Civil and Political Rights, from his exercise of the right to seek and enjoy asylum from

persecution under article 14 of the Universal Declaration of Human Rights, and from him

seeking to enforce his right to equality before the law under article 7 of the Universal

Declaration of Human Rights and article 26 of the Covenant.

39.

The source recalls that the Working Group states in its revised deliberation No. 5 on

deprivation of liberty of migrants that “the right to personal liberty is fundamental and

extends to all persons at all times and circumstances, including migrants and asylum-seekers,

irrespective of their citizenship, nationality or migratory status”.10 Furthermore, in relation to

article 12 of the Covenant and as stated in article 13 of the Universal Declaration of Human

Rights, “everyone has the right to leave any country”.11 Under article 14 of the Universal

Declaration of Human Rights, “everyone has the right to seek and to enjoy in other countries

6 Submission by the Office of the United Nations High Commissioner for Refugees (UNHCR) for the

OHCHR compilation report, universal periodic review, fourth cycle, India, February 2022, p. 4.

7 Ibid.

8 See the Working Group’s revised deliberation No. 5 on deprivation of liberty of migrants

(A/HRC/39/45, annex), para. 10.

9 India, Passport Rules 1980, p. 17, footnote 7, available at

https://passportindia.gov.in/AppOnlineProject/pdf/Passport_Rules_1980.pdf.

10 A/HRC/39/45, annex, para. 7.

11 Ibid., para. 7.

A/HRC/WGAD/2024/58

asylum from persecution”. According to the Working Group, “seeking asylum is a universal

human right, the exercise of which must not be criminalized”.12 As such, and furthermore,

“the irregular entry and stay in a country by migrants should not be treated as a criminal

offence, and the criminalization of irregular migration will therefore always exceed the

legitimate interests of States in protecting their territories and regulating irregular migration

flows”.13

40.

The source recalls that in regard to article 7 of the Universal Declaration of Human

Rights and article 26 of the Covenant, the Working Group maintains in its prior opinions that

if and when asylum-seekers do not have the same rights under domestic law as citizens of

the State concerned, who are not subjected to administrative immigration detention, then the

situation is discriminatory and contrary to article 26 of the Covenant.14 The same principles

and standards apply under article 7 of the Universal Declaration of Human Rights. Thus, such

a situation would violate the Universal Declaration of Human Rights as well.

41.

The source further recalls that the Working Group confirms, and reminds all States

Members of the United Nations, that the prohibition of arbitrary detention is absolute,

meaning that it is a non-derogable norm of customary international law which can never be

justified, including for any reason related to national emergency, maintaining public security,

or large movements of immigrants or asylum-seekers.15 The Working Group is clear that all

the above-referenced standards “apply to all States in all situations, and factors such as the

influx of large numbers of immigrants regardless of their status, asylum-seekers, refugees

and stateless persons cannot be used to justify the departure from these standards”.16

42.

While the Working Group recognizes that detention in the course of migration

proceedings is exceptionally permissible, it remains clear that “any form of administrative

detention or custody in the context of migration must be applied as an exceptional measure

of last resort, for the shortest period and only if justified by a legitimate purpose, such as

documenting entry and recording their claims or initial verification of identity if in doubt”.17

43.

Moreover, it is recalled that migration detention policies and procedures must not be

discriminatory or make distinctions based on the legal conditions of the person. Detaining

someone solely on the basis of a distinction such as race, colour, sex, language, religion,

political or other opinion, national or social origin, economic position, birth, nationality or

any other status will always be arbitrary.18

44.

The source submits that, as a UNHCR-registered refugee in both Bangladesh and

India, when Mr. Arfat moved between Bangladesh and India, he was exercising: (a) his right

to move freely and leave such countries; (b) his right to enjoy asylum from persecution not

only by authorities in Myanmar but also by militant and criminal groups in Bangladesh; and

asylum-seekers, refugees, migrants and Indian citizens alike.

45.

Mr. Arfat had no official travel documents but possessed his UNHCR refugee card.

He informed the Indian authorities of his circumstances immediately upon meeting them.

The source recalls that, in recognition of the fact that refugees cannot complete legal

formalities before entering a country, the UNHCR Guidelines on the Applicable Criteria and

Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (the

UNHCR Detention Guidelines) provide as follows:

46.

In exercising the right to seek asylum, asylum-seekers are often forced to arrive at, or

enter, a territory without prior authorization. The position of asylum-seekers may thus differ

fundamentally from that of ordinary migrants in that they may not be in a position to comply

with the legal formalities for entry. They may, for example, be unable to obtain the necessary

12 Ibid., para. 9.

13 Ibid., para. 10.

14 Opinion No. 44/2023, paras. 49 and 132.

15 See the Working Group’s revised deliberation No. 5 on deprivation of liberty of migrants

(A/HRC/39/45, annex), para. 8.

16 Ibid., para. 48.

17 Ibid., para. 12.

18 Ibid., para. 21.

A/HRC/WGAD/2024/58

documentation in advance of their flight because of their fear of persecution and/or the

urgency of their departure. These factors, as well as the fact that asylum-seekers have often

experienced traumatic events, need to be taken into account in determining any restrictions

on freedom of movement based on irregular entry or presence.19

47.

The source emphasizes that Indian authorities did not take these factors into account.

The Government of India has reportedly detained, and continues to detain, Mr. Arfat

seemingly as punishment for seeking nothing more than to move freely to find a safe place

to live and for expecting to be treated under the law without distinction as to his refugee

status. The source argues that this is inherently illegal under any just legal regime. Because

Mr. Arfat’s detention violates articles 7, 13 and 14 of the Universal Declaration of Human

Rights and articles 12 and 26 of the Covenant, it is arbitrary under category II of the Working

Group.

48.

In relation to category III, the source argues that Mr. Arfat’s detention is arbitrary

because he is deprived of the opportunity to petition any court or tribunal for his release or

for reconsideration of his case.

49.

Although Mr. Arfat’s family have launched a legal proceeding on his behalf, the

source notes that Guwahati High Court been effectively prevented from hearing the petition

by perpetual delays granted on the basis that the authorities are said to be in the process of

deporting Mr. Arfat and are merely waiting for a reply from the authorities of Myanmar.

Guwahati High Court first heard the petition on 26 May 2023, and the Court has deferred the

petition 13 times since, until 19 March 2024. According to the source, the reality is that

Mr. Arfat cannot access the judicial system to obtain any substantive hearing of his petition

for release.

50.

The source concludes that Indian courts’ failure to respond to a petition for the release

of an individual unlawfully detained for more than three years must qualify as an abrogation

of the right to a fair trial and remedy under article 8 of the Universal Declaration of Human

Rights.

51.

Similarly, in relation to category IV, the source contends that Mr. Arfat’s detention

constitutes unreasonable, prolonged and unnecessary administrative detention of a refugee in

circumstances where there is no possibility of administrative or judicial review or remedy.

The source notes that customary international law, as well as article 9 of the Covenant, to

which India is a State party, forbids the arbitrary, unlawful or indefinite detention of any

person, including refugees and migrants. Any detention must be a last resort, necessary,

reasonable, and proportionate to a legitimate government objective. Immigration detention is

legitimate if someone is at risk of absconding from future legal proceedings or administrative

processes or when someone presents a danger to their own or public security.

52.

In this context, the source recalls that according to the UNHCR Detention Guidelines,

“indefinite detention is arbitrary and maximum limits on detention should be established in

law.”20 The guidelines state that indefinite detention for immigration purposes is arbitrary

under international human rights law.21 International law requires national legislation to set

maximum periods of detention and recognizes that prolonged detention is especially likely

for stateless refugees.22

53.

Furthermore, according to the UNHCR Detention Guidelines and the UNHCR

Executive Committee Conclusion on Detention of Refugees and Asylum-Seekers, authorities

should assess certain factors for the necessity of detention, including history of cooperation

or non-cooperation, past compliance or non-compliance with conditions of release or bail,

family or community links or other support networks in the country of asylum, the

19 UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-

Seekers and Alternatives to Detention, guideline 1, para. 11.

20 Ibid., guideline 6.

21 Ibid., guideline 6, para. 44.

22 Ibid., guideline 6, para. 46.

A/HRC/WGAD/2024/58

willingness or refusal to provide information about the basic elements of their claim, or

whether the claim is considered manifestly unfounded or abusive.23

54.

In Mr. Arfat’s case, the source reports that there is no evidence that the Government

of India has found that he presents a risk of absconding from any legal or administrative

proceedings or that he presents a danger to himself or to the Indian public. In fact, Mr. Arfat

is known for his human rights work in the Rohingya community, where he has been a human

rights defender since 2012, notes the source.

55.

Furthermore, the source argues that in this particular case, the reasoning put forward

by Indian authorities to support the continued detention of Mr. Arfat is especially egregious.

Affidavits submitted by representatives of the Government of India indicate that Mr. Arfat is

being detained in the Matia Detention Centre to ensure that the Government can verify his

nationality with the authorities of Myanmar and to ensure his presence for deportation

proceedings.

56.

The source quotes the affidavit, in which it is stated that “verification of nationality is

a sovereign function of the foreign Government, no time limit can be fixed for completion of

the process of nationality verification. Till such time as his nationality is verified and

deportation is completed, his movements need to be restricted in a detention centre to ensure

his physical availability for deportation … A reminder has been issued to the Embassy of

Myanmar and response is awaited.”

57.

The source recalls that the Working Group has directly addressed this situation in its

revised deliberation No. 5 on deprivation of liberty of migrants, stating that there may be

instances where the obstacle to identification or removal of persons in an irregular situation

from the territory is not attributable to them – including non-cooperation of the consular

representation of the country of origin, the principle of non-refoulement or the unavailability

of means of transportation – thus rendering expulsion impossible. In such cases, the detainee

must be released to avoid potentially indefinite detention from occurring, which would be

arbitrary.24

58.

As stated by the Working Group, “indefinite detention of individuals in the course of

migration proceedings cannot be justified and is arbitrary”.25 Due to his status as a stateless

refugee and alleged prior violation of domestic Indian migration law (for which he served his

sentence), Mr. Arfat is being detained indefinitely, awaiting a response from the very

governmental authorities who reportedly continue to persecute members of his ethnic group

and have rendered him and hundreds of thousands of others stateless. For these reasons,

concludes the source, Mr. Arfat’s detention is arbitrary under category IV of the Working

Group.

59.

Finally, in relation to category V, the source argues that Mr. Arfat’s detention is

arbitrary because there exists a significant likelihood that it is attributable to his ethnic and

religious identity as a Rohingya Muslim. In this regard, the source notes that more than

500 individuals belonging to the Rohingya community are currently detained in India

awaiting deportation to Myanmar, the country from which they have fled.

60.

The source recalls that in 2019, the Special Rapporteur on contemporary forms of

racism, racial discrimination, xenophobia and related intolerance emphasized that the Indian

authorities’ existing and continuing discrimination against Rohingya, who are an ethnic

minority, violates the obligations of India under the Universal Declaration of Human Rights,

the Covenant and the International Convention on the Elimination of All Forms of Racial

Discrimination. 26 In the same year, four United Nations experts released a statement

condemning the Government of India for “the systemic use of indefinite detention of

23 Ibid., guideline 4.1.1; and UNHCR Executive Committee, conclusion No. 44 (XXXVII) on detention

of refugees and asylum-seekers (1986), para. B, available at:

http://www.unhcr.org/refworld/docid/3ae68c43c0.html.

24 A/HRC/39/45, annex, para. 27.

25 Ibid., para. 26.

26 Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related

intolerance: Legal opinion on the obligations of India under international law not to deport

Rohingyas.

A/HRC/WGAD/2024/58

Rohingya in India, which is indicative of the unacceptable conditions of discrimination and

intolerance they face in the country where they have sought refuge.”27

61.

The source further recalls with concern decisions of Indian courts in December 2023

affirming the legality of indefinite detention of Rohingya refugees in India pending their

deportation to Myanmar.28

62.

The source affirms that none of the detainees in the relevant detention centres are

serving criminal sentences. While some have served criminal sentences for illegal entry into

India, the relevant detention centres holding concentrations of Rohingya house only those

waiting to be deported after having served any criminal sentence.

63.

The source further points to alleged systemic discrimination experienced by Rohingya

and other Muslim communities in India, including as a result of the 2019 Citizenship

(Amendment) Act, which fast-tracked asylum claims from non-Muslims at the expense of

claims lodged by Muslims.

(b)

Response from the Government

64.

On 16 July 2024, the Working Group transmitted the allegations from the source to

the Government under its regular communications procedure. The Working Group requested

the Government to provide, by 16 September 2024, detailed information about the situation

of Mr. Arfat and to clarify the legal provisions justifying his continued detention, as well as

its compatibility with the obligations of India under international human rights law, in

particular concerning the treaties ratified by the State. Moreover, the Working Group called

upon the Government to ensure his physical and mental integrity.

65.

On 13 August 2024, the Government submitted that the matter was presently

sub judice at Guwahati High Court. It further submits that the necessary action for

deportation or detention or for verification of the nationality of any foreign national is taken

as per the procedure established by law, as is also applicable in the present case.

(c)

Further comments from the source

66.

In its further comments of 17 October 2024, the source submits that Mr. Arfat is

experiencing suicidal ideation as a consequence of being detained for several years and is in

need of medical care. According to the source, the court has asked the Government of India

to expedite the process of verification of Mr. Arfat’s nationality by sending correspondence

to the authorities of Myanmar, but to no avail. The source reiterates that the authorities of

Myanmar have failed to confirm his nationality for several years and are highly unlikely to

do so. The source further notes that the authorities of Myanmar not only do not recognize

Rohingya citizens in Myanmar but have also actively targeted them for extinction. Despite

this, in its brief response, the Government of India appears to be invoking the need for the

authorities of Myanmar to confirm Mr. Arfat’s nationality in order to release him from

detention as the reason for Mr. Arfat’s ongoing detention.

67.

The source reiterates that deportation to Myanmar would further violate international

law and put Mr. Arfat in grave danger. Moreover, although it has received information that

the court directed the Government to contact the UNHCR mission in India with regard to

Mr. Arfat’s detention, the UNHCR mission in India has reportedly not been contacted by the

Government of India about this case.

68.

The sources maintains that the Indian authorities should immediately and

unconditionally release Mr. Arfat from detention and work with UNHCR to grant him

protection and durable solutions, which could include resettlement in a third country.

27 OHCHR, “India: UN human rights experts condemn Rohingya deportations, 2 April 2019, available

at https://www.ohchr.org/en/news/2019/04/india-un-human-rights-experts-condemn-rohingya-

deportations.

28 With reference to Khatoon v. Foreign Regional Registration Office, High Court of Delhi at New

Delhi, W.P. (CRL) 1311/2023 & CRL.A.A. 250846/2023 (interim relief), 12 December 2023.

A/HRC/WGAD/2024/58

Discussion

69.

The Working Group thanks the source and the Government for their submissions.

70.

In determining whether the deprivation of liberty of Mr. Arfat is arbitrary, the

Working Group has regard to the principles established in its jurisprudence to deal with

evidentiary issues. If the source has presented a prima facie case for breach of international

law constituting arbitrary detention, the burden of proof should be understood to rest upon

the Government if it wishes to refute the allegations. Mere assertions by the Government that

lawful procedures have been followed are not sufficient to rebut the source’s allegations.29

(a)

Category I

71.

The Working Group will first consider whether Mr. Arfat’s detention is arbitrary

under category I. The source submits that there is no legal basis for the detention of Mr. Arfat,

who was arrested without a warrant and continues to be detained after serving his sentence.

72.

Pursuant to article 9 (1) of the Covenant, no one is to be deprived of his or her liberty

except on such grounds and in accordance with such procedures as are established by law.

The Working Group has previously stated that, for deprivation of liberty to have a legal basis,

it is not sufficient that there is a law that may authorize the arrest. The authorities must invoke

that legal basis and apply it to the circumstances of the case.30 This is typically done through

an arrest warrant or arrest order (or equivalent document).31 In the present case, noting the

source’s unrebutted submissions that the arresting officers did not present an arrest warrant

or other decision of a public authority at the time of arrest,32 the Working Group considers

that the arrest was carried out in violation of articles 3 and 9 of the Universal Declaration of

Human Rights33 and article 9 (1) of the Covenant.34 The Working Group also expresses

concerns that Mr. Arfat was reportedly subjected to repeated physical assaults while in police

custody, which in the Working Group’s view compounds the illegality of his arrest and

detention.

73.

The Working Group has stated in its jurisprudence that, even when the detention of a

person is carried out in conformity with national legislation, it must ensure that the detention

is also consistent with the relevant provisions of international law. 35 In this regard, the

Working Group notes the source’s submission that section 3 (2) of the country’s Foreigners

Act 1946 empowers the Government to order that foreigners be arrested, detained or confined

without any specified period of limitation. The Working Group recalls its revised deliberation

No. 5 on deprivation of liberty of migrants, in which it states that “a maximum detention

period in the course of migration proceedings must be set by legislation, and such detention

shall be permissible only for the shortest period of time”.36 Moreover, it is stated in the

UNHCR Detention Guidelines that “indefinite detention is arbitrary and maximum limits on

detention should be established in law” 37 and that indefinite detention for immigration

purposes is arbitrary under international human rights law. 38 The UNHCR Detention

Guidelines also state that stateless persons, those who are not considered to be nationals by

any State under the operation of its law, are entitled to benefit from the same standards of

treatment as those in detention generally. Being stateless and therefore not having a country

to which automatic claim might be made for the issue of a travel document should not lead

to indefinite detention.39 The Working Group observes that the Foreigners Act 1946 allows

29 A/HRC/19/57, para. 68.

30 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.

31 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests

made in flagrante delicto, the opportunity to obtain a warrant will typically not be available.

32 Opinions No. 45/2019, para. 51, No. 71/2019, para. 70; and No. 57/2021, para. 52.

33 Opinions No. 3/2018, para. 43; No. 26/2018, para. 54; No. 82/2018, para. 29; No. 37/2020, para. 52;

and No. 57/2021, para. 52.

34 Opinion No. 57/2021, para. 52.

35 Opinion No. 8/2023, para. 64.

36 See para. 25.

37 Guideline 6.

38 Ibid., guideline 6, para. 44.

39 Guideline 9.

A/HRC/WGAD/2024/58

foreigners to be arrested, detained or confined without any specified period of limitation,

leading potentially to indefinite detention as is the case thus far for Mr. Arfat.

74.

Noting the source’s submissions, and in the absence of a response from the

Government on this matter, the Working Group observes that the Foreigners Act 1946

criminalizes the illegal entry and stay in a country by migrants and refugees. As the Working

Group has stated, “irregular entry and stay in a country by migrants should not be treated as

a criminal offence, and the criminalization of irregular migration will therefore always

exceed the legitimate interests of States in protecting their territories and regulating irregular

migration flows”.40

75.

With regard to the application of the Foreigners Act 1946, the source submits that

UNHCR has noted that it applies to all classes of foreigners, including refugees and

asylum-seekers, and does not provide exceptions for asylum-seekers from penalties for

entering the country without the required documentation, which is at variance with

international standards. 41 According to the source, UNHCR has noted that under the

Foreigners Act 1946, asylum-seekers can be subjected to prolonged detention even after

serving their sentence, 42 as has been Mr. Arfat’s experience. The authorities sentenced

Mr. Arfat to one year of imprisonment for illegal entry and stay in the country under the

Foreigners Act 1946, and continue to detain him under section 3 of the Act although he has

already completed that sentence.43 In addition, Mr. Arfat also served a sentence for violating

rule 6 of the Passport Rules 1950, which was no longer in effect because it had been omitted

from the Passport Rules 1980.44 Mr. Arfat has thus served a sentence for a crime that no

longer existed under Indian law.

76.

On the basis of the foregoing, the Working Group determines that Mr. Arfat’s

deprivation of liberty lacks any legal basis and is thus arbitrary under category I of the

Working Group.

(b)

Category II

77.

In relation to category II, the source argues that Mr. Arfat’s detention is arbitrary

because it stems from his exercise of the right to seek and enjoy asylum from persecution

under article 14 of the Universal Declaration of Human Rights, and from seeking to enforce

his right to equality before the law under article 7 of the Universal Declaration of Human

Rights and article 26 of the Covenant.

78.

The Working Group observes that anyone seeking asylum is likely to arrive without

a valid visa,45 and recalls the UNHCR Detention Guidelines which provide that in exercising

the right to seek asylum, asylum-seekers are often forced to arrive at, or enter, a territory

without prior authorization. 46 In Mr. Arfat’s case, although he had no official travel

documents, he possessed his UNHCR refugee card and informed Indian authorities of his

circumstances immediately upon meeting them.

79.

As the Working Group has stated, seeking asylum is a universal human right, the

exercise of which must not be criminalized,47 and the right to personal liberty is fundamental

and extends to all persons at all times and in all circumstances, including migrants and

asylum-seekers, irrespective of their citizenship, nationality or migratory status.48 Therefore,

40 See the Working Group’s revised deliberation No. 5 on deprivation of liberty of migrants, para. 10.

41 Submission by UNHCR for the OHCHR compilation report, universal periodic review, fourth cycle,

India, February 2022, para. 114.

42 Ibid., p. 4.

43 During its country visit to Malta, the Working Group noted that that country’s Immigration Act

imposed detention indiscriminately on all migrants in irregular situations, and that because there was

no time limit on the detentions, the period of detention was potentially indefinite.

44 India, Passport Rules 1980, p. 17, footnote 7.

45 See opinion No. 42/2017. See also the Working Group’s revised deliberation No. 5 on deprivation of

liberty of migrants, para. 9.

46 Guideline 1, para. 11.

47 See the Working Group’s revised deliberation No. 5 on deprivation of liberty of migrants, para. 9.