Roshni Shanker is the founder of the New Delhi-based Migration and Asylum Project (M.A.P.). After completing her law degree from National Law Institute University, Bhopal, she initially worked with one of India’s leading law firms, Amarchand Mangaldas, as a corporate lawyer for three years. Realising that her real interest lay in humanitarian and relief work, Roshni left her job and decided to pursue a Masters degree from Columbia Law School, New York, where she focused mainly on international humanitarian law and civil liberties. She joined the UNHCR in 2010 and worked in different UN field offices, including India, Egypt and UAE, before leaving to set up M.A.P. At M.A.P, she is responsible for the overall management, fundraising and M&E.
Q. Why don’t we start with talking about what kind of work you did for the UNHCR when you worked there as an attorney.
Before I started MAP in 2013, I was working with UNHCR as a lawyer. My job there was to assess asylum claims from people coming from different countries. In India, e.g., most refugees come from Afghanistan, the Middle East, Myanmar and Somalia. These are the main groups. And our job was to meet each individual asylum seeker. We would ask them in interviews why they left (their countries). The whole idea behind these interviews was to see if they fit within the definition of a refugee under international law, which says that a refugee has to have a well-founded fear of persecution.
These interviews were very important because it’s a question of life and death in a lot of cases. It’s a very rigorous process (to determine if a person falls within the definition of ‘refugee’), which people don’t really know. It takes almost a year sometimes to conclude a case (to establish that a person may or mayn’t be a refugee) from the beginning to the end. And to establish the threat of persecution, the threshold is very high under law. There has to be a threat to life, limb and liberty. People confuse economic migrants with refugees. But as I said, legally the threshold for who is a refugee is very very high. And it was our job to see whether that person fits within that definition, and if there’s an actual risk if that person goes back to their country.
Q. Could you share some of your experiences while working closely with asylum seekers and refugees.
I’ve interviewed people from Iraq, Afghanistan, Myanmar and other countries affected by conflict. Claimants included military generals, child soldiers, Afghan women targeted by the Taliban because they had done something as simple as be a fashion designer or be a musician. There were also journalists, print journalists or broadcasting journalists who had read out news against the Taliban. So there are diverse sets of these cases. Or from Myanmar who are persecuted by the military, which often amounts to torture.
I realised how important this interview is for them. These interviews usually last for three hours to six hours. And because we had a very large case load, it was also crucial for them to give that information within that period. They didn’t know what a refugee law definition is or what is ‘well-founded fear’, or what is ‘persecution’. And I also realised that a lot of times you would have a case that would prima facie look very weak, but having spent more time on asking the right kind of questions you would find out that the case was far more serious. Eg, a lot of refugees, women especially, have faced sexual violence in a conflict situation by the military, by insurgent groups, but they don’t want to talk about it because: a) it’s so routine, b) it’s a difficult thing to talk about, c) culturally they come from conservative backgrounds, even in India it’s true, so they wouldn’t talk about it.
Or there was a case from say Afghanistan and the person is homosexual and that’s why he left the country but he would not tell us that, and would come up with a fake claim. The community may have told him ‘Say you’re an interpreter with the American forces and you’ll get in’ because the last 10 such cases got accepted. And there is a lot of misinformation within the community. So knowingly or unknowingly you may reject some cases where there was a genuine asylum claim.
If you get rejected, you have the risk of being detained or being deported, so you’re at the risk of persecution. So I realised how important these interviews were and how hard pressed people were to conduct these interviews.
At that time they (UNHCR) came up with guidelines saying that we must encourage lawyers to participate (in the asylum process) because there should be legal representation (for refugees) which will make the process more transparent and give the client the best possible avenue, the best possible chance to make their case. They (UNHCR) had agreed to allowing this but none of the regional offices or field offices actually started that because I think firstly lawyers were not really coming forward to provide representation because it’s pro-bono. Secondly, nobody wants a watchdog. There was also this fear that if there’s bad legal representation it will add more to their timelines than improve them. At that time I was in Egypt, where the volume of cases were probably five times more than what we’ve seen in Delhi because of the Syrian refugee crisis. At that time I think within six months they had 200,000 Syrian refugees, they also had refugees from Sudan; the sheer scale of the refugee crisis there at that point was immense.
Q. Why did you decide to leave UNHCR and start your own organisation?
I set up the organisation because we wanted it to be the first point of contact of people seeking refugee status. They’re the most vulnerable at that time. I felt the need to step away from being the decision maker to being a lawyer who works from the other side (giving legal representation to those seeking refugee status), because I felt that’s where my expertise would be put to better use. Everyone wants to work with the UN. So the UN doesn’t have a shortage of lawyers who are doing decision making. But I thought there was nobody on the other side (to represent people who had fled their home countries). In Egypt there was an organisation that started doing this (representing asylum seekers and prospective refugees). And they were doing this quite well. It was called AMERA. I had interviews where I had a lawyer present and I was able to observe how this whole thing works.
So that’s where the idea started and I left the job and came back to India. I wanted to start an organisation as I knew how the system works, I knew the law. And I also knew the community in a way, like I knew the community leaders as I had worked in UNHCR so it was not that difficult for me to tell them about my work and get clients.
So that’s how the organisation (MAP) started.
Within four months of starting the organisation we were able to lobby with UNHCR to sign a LoU (Letter of Understanding) authorising us to be lawyers in the asylum process. So currently no other lawyer or organisation can represent cases before UNHCR because you need to get that LoU with them.
What we did with that LoU was broader in the sense that tomorrow if another lawyer wants to do (what we are doing) they can use the same LoU and ask the UNHCR for authorisation.
As part of our job we also go along with refugees for the UNHCR interview and sit as observers to ensure that all the procedural guidelines are being followed, ensure that the officers are not very intimidating and are giving enough time, addressing trauma, etc. At the end of the interview we are allowed to give a closing statement specifying why we feel this case should be considered for refugee status. After that we follow up with them till the final decision is taken on their case.
We at MAP deal with not just refugee issues but general migration-related issues, such as trafficking. We also intend to work on international law related issues pertaining to migration. We see ourselves as a research centre, for constructive engagement with the authorities and stakeholders.
Q. Where do these interviews take place?
They happen at the UNHCR. Think of it as a UNHCR tribunal, in a way. Within UNHCR there’s also an appeals process. They are supposed to give us a reasoned decision, as to why a case has been rejected. They were not doing this earlier. Earlier they would just say yes or no. After we started giving legal representation to refugees, we lobbied for reasons to be given, then only we’ll be able to file an effective appeal application. We get a lot of appeal cases, after someone’s case has been rejected. This is because usually people don’t find us in the beginning. After their case gets rejected and they’re in India for a while, they find their way to us. We want to avoid that. We want people to come to us in the beginning itself because then we have a better shot at helping them make a good case for seeking legal status as refugees. So we are trying to spread more information about us among the concerned communities.
Q. Can you talk about some noteworthy cases you worked on after starting your own organisation?
The first four months (after starting MAP) were crucial for us since we had a very important case that had come to India from the Nuba mountains in Sudan. He had been applying for asylum since 1991 and he was rejected constantly by UNHCR because he didn’t tell them that he was from Nuba mountains and because we don’t know much about what’s happening in Sudan and Nuba mountains. He was somehow surviving here (in India) by doing small jobs. Because I had worked in Egypt where there’s a huge number of refugees from Nuba mountains, I just happened to know by chance that the headquarters had changed the policy at that time and said that anyone coming from the Nuba mountains should be recognised as a refugee because the situation there was so bad. So you don’t have to show that you were personally affected, like in the case of Rohingyas. Just the fact that you are part of that ethnic group (hailing from Nuba mountains) is enough.
UNHCR missed this because it’s a large operation and we don’t get anyone from there and he was a one off case. He was our first client at the time when we were lobbying with the UNHCR and we were not really sure whether they’ll allow us (to represent him). With that case they allowed us to provide legal representation as a test case and he got recognised as a refugee after 20 years! And that became the case that we constantly used to say ‘this is why you (UNHCR) need us, you missed it’. He would have been persecuted or killed had he been sent back. Using that we got this LoU and since then we’ve been representing cases.
So that’s still our core work, which is representation of cases (of those seeking refugee status in India) before UNHCR. Slowly, we realised that since no one else is doing this work it’s such a niche space. And because UNHCR is an international agency, it doesn’t have the kind of access to the government sometimes which a local NGO tends to have. I can still file a RTI application, go to court as a citizen, file a PIL etc, which UN agencies can’t. Most of the other organisations working on refugees are UNHCR’s partners. So they too are bound by the same constraints. We were not.
Q. What are your sources of funding?
We decided not to take any funding from UNHCR, because there was a conflict of interest. They’re decision makers, we’re lawyers representing refugees. So we take funding from other UN agencies, and other bipartisan government organisations.
Q. Apart from representing those seeking refugee status in India, is there any other role that you play at MAP?
Slowly we started moving into policy work. We started engaging on whether India should have a refugee law policy.
For instance, we have done very detailed research that found that after demonetisation, refugees were the most hit because all their money was in cash and they had no access to the new currency. So overnight, they couldn’t even buy food or go to a hospital. And then Aadhaar was introduced as being mandatory. So they got completely marginalised.
We also do legal awareness campaigns for refugees. Most of them don’t have access to the criminal justice system because they’re not citizens and their status is very tenuous, they don’t know that they can go to court if something happens to them. And sexual violence is rampant in the community. So a program that we’re currently doing is to tell them that they can have access to legal aid.
We’ll also be approaching legal aid authorities to tell them about refugees. We want to involve judges and law students. We have set up a refugee law clinic at Symbiosis Law School where students can assist with legal counselling and assistance; if they want to go to a cop, they can get someone to come with them as they don’t know the language and the procedure.
So we’re trying to work it out, if students are interested in doing this kind of work where they can intern with us and also carry out our activities, because we’re a small ten-lawyer team.
The third thing that we’re doing is that, a lot of litigation lawyers who are in other cities, say in Chennai or Kolkata, are getting detention cases which involve refugees and because we don’t have a law for refugees, they often struggle with how to represent these cases. So, the only organisation that has come up with some kind of guidelines is Commonwealth Human Rights Initiative (CHRI). They work in this space. They came up with a very useful toolkit for lawyers saying if you have a detention case (involving a refugee), this is what you need to do. So we are planning to take the next step and come up with a much more comprehensive tool kit for lawyers dealing with these issues which have refugees or forced migrants involved as a client. It could be on trafficking, as a lot of refugees face trafficking. It could be on detention, deportation, citizenship, documentation, anything. We know the kind of issues refugees typically face legally.
We also help in connecting refugees to whatever services we think they can readily access. We connect them to UNHCR’s partners, to any livelihood skill development projects, for instance. Once an individual gets refugee status, they are come under complete UNHCR protection. So we tell them about the services they can access, who they can contact if they face any problems, etc.
Q. India doesn’t have a law on refugees. So how do we deal with all those who come here from other countries seeking refugee status?
Since we (in India) don’t have a refugee law, we use complementary legislation, we use international law, we use a very complicated legal system that has been developed with innovation of lawyers over the years to figure out ‘if we haven’t signed the refugee convention, what do we do?’ So don’t look at them just as refugees. Break that label. So let’s look at refugees under the convention against torture because they are torture survivors. If you have refugee woman don’t just look at the refugee convention look at Convention on Elimination of Violence against Women because they come under that. Or any international agreement. Earlier the approach was that India hasn’t signed the refugee convention so there’s no obligation. But what we do is that we break that label of our client as a “refugee” because that means nothing to us legally. Let’s look at a child who is a refugee but doesn’t have legal status. Then the convention on rights of child apply. Instead of looking at the refugee convention we try to derive their rights under conventions that India has signed. It’s a very complicated mechanism. We have to see each individual profile and see which international convention or case law can be applied to it.
In the 1990s, the Supreme Court had also extended certain Constitutional rights to refugees. And a lot of high courts have come up with very progressive decisions. They’ve issued orders to the effect that you can’t deport a refugee without a case by case analysis, and that person has to be given a due process system.
So over the years we have learnt it and we have the jurisprudence and now we want to set up a tool kit on our website which people can access for information if they have a client who is a refugee, or if a judge has such a case.
Q. Would you say that having a refugee law is very important for India?
Yes, I would. Because what happens is that as of today we work on ad hoc refugee policies. We have a different policy for Tibetans, we have a different policy for Sri Lankans, we have no policy for some of them.
In India we treat refugees as two different groups — those coming from the neighbouring countries and those coming from non-neighbouring countries.
So if you come from a neighbouring country, the government says this is more of a security concern so they provide assistance directly. The Sri Lankan camps, the Tibetan camps are directly managed by the govt.
But if you’re coming from a non-neighbouring country like Afghanistan or Somalia, the government has mandated UNHCR to protect these groups; Myanmar being the only exception, though Myanmar is a neighbouring country, if you come from there you go to UNHCR.
So it’s already a bit complicated since some refugees are protected by the government, and some by UNHCR. Now UNHCR doesn’t issue them a government document. It issues them a UNHCR card, which isn’t really recognised because people don’t really know what UNHCR is. So that document doesn’t take them too far.
Whereas a Sri Lankan refugee, for instance, gets a government-issued residence permit or a refugee card which has more validity. So they’ve been able to get better access to say universities, etc. Same with the Tibetans. They’ve had better access, they’ve had land rights, they can do business because they can get trade licences, which an Afghan refugee can’t.
There are no uniform set of rights, no uniform documentation (for refugees). It’s a chaotic system.
Within that group a Pakistani Hindu and an Afghan Hindu or Sikh can apply for citizenship. There are policies that say that they can apply for citizenship.
Q. This was before CAA?
Yes, even before CAA, a Pakistani Hindu or an Afghan Hindu or Sikh could apply for citizenship based on specific government policies.
There are a lot of misconceptions around refugees and CAA, which only practitioners (like us) know. Actually (post-CAA), nothing has changed for refugees on the ground. In fact what it does is dilute the concept of a refugee. I’ll go into that later.
Until recently, it was still a system that worked largely because the govt respected UNHCR’s decisions. By and large, India has had a generous approach to refugees. We are known to be a generous host to refugees, because of the way we handled the Tibetan and Sri Lankan refugee crisis. It was an imperfect system but it was a generous system. We don’t give them access to socio-economic services but we also don’t detain and deport indeterminately. Detention and deportation is an exception and not a rule.
If you need to protect persecuted minorities, you need to have an asylum law first. No country gives citizenship to refugees immediately. They first give them asylum. It’s a long rigorous process to get refugee status in India. It takes a year or two. Once you get refugee status and fulfill the residency requirement, you can have other criteria to eventually get citizenship. So we’ve skipped a step completely.
The CAA also dilutes the definition of refugee, for which, as explained, there’s a very high threshold. You could be an economic migrant from Bangladesh who doesn’t face persecution. If you’re Hindu you’ll get citizenship under the law. But if you’re actually a refugee facing torture and face a threat of persecution, say a woman from Afghanistan who comes here after getting threats from the Taliban, she will be denied protection in India under the Citizenship Act.
As of now, the word persecution is not there in the amendment. It’s there in the object. Nobody knows (what that means). Maybe they are presuming persecution for these religious minority groups. But that doesn’t mean other people are not facing such risks. Afghanistan is a conflict-ridden country so civilians are at the risk of persecution irrespective of their religion.
Even in the mainstream, there’s a lot of confusion between citizenship and asylum. They’re two completely different things. Refugees need not even ask for citizenship. They may just ask for asylum grant. Even for Rohingyas, no one asked for citizenship.
Q. When do the Indian courts come into the picture as far as refugees are concerned?
As an organization, we don’t go to the courts at all with the cases of refugees. We only go to the UNHCR. The Indian courts come into the picture if and when there’s an issue of conflict with the Indian law. Say, if someone is detained under the Foreigners’ Act for lack of documentation. Then you go to courts saying he is illegal, but because he is a refugee he should be given access to the UNHCR. Asylum seekers under international law are not expected to enter our country legally because they are fleeing conflict. They may not have the time or means to apply for the legal process to enter another country. So such individual cases are the ones that may end up going to the courts. Most of them are detention cases.
There are also some cases involving the question of citizenship for refugees in High Courts. With respect to the Supreme Court, the Rohingya deportation case is the first big case (related to refugees) in a long time. The last significant case was, I think, NHRC vs State of Arunachal Pradesh in 1991-92. It’s a big landmark case where the court said that Articles 21 and 14 will apply to foreigners, including refugees.
Whatever decision comes out of the Rohingya deportation case will have far reaching impacts because the prayers have been framed in a very broad way. It’s not just about the deportation order but it also asks the court to clarify what is India’s refugee policy. So the implications will be not only on India’s refugee policy. Everyone in the (geopolitical) region is watching this case. The moment India says ‘we don’t have any legal obligations (towards refugees)’ other countries, like Bangladesh, may also say that. That’s the fear.
Q. Since you have worked extensively on refugee issues on an international level too, what’s the difference, broadly, between the ways in which other countries handle refugee issues and India handles them?
Indian has for a long time lauded for its treatment of Tibetan and Sri Lankan refugees. In fact, this is considered a ‘best practice model’ despite India not being a signatory (to the UN Convention on Refugees). Many countries, despite being signatories and hosting large refugee populations, don’t really fulfil the obligations.
Till 2016-17, I have never been to a conference where I had to talk about the problems pertaining to the lack of a refugee law in India. Our problem was only that India wasn’t consistent in dealing with the refugees, it was not uniform but it was never bad. But today, immediately the issue of NRC and CAA comes. The situation has completely changed today.
Q. Do you think NRC and CAA are fair laws?
I would be very surprised if there are lawyers who feel these are not against basic rule of law or Constitutional principles. I do believe that citizenship is the sovereign right of a country. I think every country can decide how they want to give citizenship. But you can’t ignore your own country’s history of constitutional protection, or the rule of law, or your own democratic ethos. It does not matter how other countries give citizenship. We have a Constitution and we have a very strong jurisprudence. We have always respected due process, we have always respected Article 14 and that should continue. I believe that we cannot have a law which goes against our basic Constitutional principles. And I feel this one does.
We already have multiple criterion for how we want to give citizenship. That is all right by all means. We should respect that process. But should that process be based on religion, and only on religion? I think that is problematic.
I’ll talk about three big myths about the Citizenship Act:
One is that it’s expanding the kind of protection available to refugees, because now you are giving them citizenship. My response to that is not really, because if you look at the existing refugee group, only the Pakistani and Bangladeshi Hindus and the Hindus and Sikhs from Afghanistan qualify for citizenship. They were already eligible for citizenship. That hasn’t changed. Where it helps them is probably it reduces the time period (to give them citizenship) to six years. The Hindus and Sikhs were already getting long-term visas which the other groups were not getting. Within the existing refugee group, the new law does not include any new group. The Sri Lankan Hindus are still excluded. So it’s the same group as earlier which will get citizenship now, with almost the same process. So practically nothing has changed.
Secondly, there’s this feeling that the law is expediting citizenship for people of a particular religion, but if you are a refugee following a different religion (Islam) you can still apply under the regular process. Technically that’s absolutely correct. If you’re an Afghan Muslim you can still apply for Indian citizenship. But the fact is that practically, such a person was never given a document which gives him legal status here. So as a Muslim seeking citizenship, I will never be able to prove my residence here for 12 years because I was never issued a visa, because it’s completely discretionary. They have never had a document that shows that they’ve been living in India for a minimum period of 11 or 12 years. The UNHCR card is not proof of residence. Practically speaking, they’ll never be able to apply for Indian citizenship through the ‘normal route’. In fact there never has been a ‘normal route’ for them.
The third thing is about an economic threat, that we’ll get more number of people if we give citizenship to refugees from all religions. What I’d like to say on that is that this law in fact lowers the threshold for giving refugee status and more people will now qualify for citizenship than earlier. The definition of refugee (under international law) is far more difficult to meet than the requirement under this law. As of now the way the Act reads, it doesn’t make ‘persecution’ as a requirement to grant refugee status. I just have to establish that I’m from this particular country and that I follow a particular religion. I don’t have to show that I actually face persecution, that something bad happened to me or my family. Under the current definition of refugees, there are only 200,000 refugees in India who have actually ‘qualified’ to be refugees. So under the new law the threshold has been lowered now, so we will actually have a lot more people who are actually not truly ‘refugees’ (under international law) but who’ll qualify for citizenship.
Q. Technically, what’s the difference between an asylum seeker and a refugee?
An asylum seeker is a person who has applied for asylum but hasn’t yet been granted refugee status. All the clients that I have are asylum seekers. Some of them go on to become refugees with our assistance. So when you apply, you’re an asylum seeker. Then you become a refugee when you are given that status. If you are denied refugee status, then you are with legal status, you’re out of the system — neither an asylum seeker nor a refugee.
Q. You went to NLIU, Bhopal, and worked with Amarchand Mangaldas, a leading law firm, for three years. Then you went to Columbia Law School and quit corporate law altogether. Was it a conscious decision?
I really like Human Rights and International Law, and at that time there weren’t so many opportunities in these fields. I wanted to work for the UN or the NGO sector. But I realised that I won’t be able to sustain on a salary that comes from working in the NGO sector. So I decided to study international law.
I joined Amarchand Mangaldas because I wanted to experience working for a corporate law firm. At Amarchand Mangaldas, I learnt a lot and I’m thankful for that. I enjoyed that experience, even though it was challenging. I owe a lot of my professionalism to what I learnt there. But I wasn’t keen on working in the corporate sector for too long. So after getting a degree in International Law from Columbia I worked with the UNHCR. I started this organisation because I wanted to use international law on a practical level, and because I love this work.