Deportation or Removal – An analysis under Immigration rules

When we come across the Act and Rules such a difficult task to understand and being a layman, it is very difficult to understand the complexity of Deportation under Immigration Rules across world. a profound analysis is to be described so as to layman can understand about the legal provision, there are different rules of Deportation across world, now the time has come to understand the complexity of the deportation under the Immigration rules.

In a simply world, deportation means the foreign person not allowed to stay in country but deportation is possible only on some ground as per respective country immigration rules.

Recently, India has faced denial of deportation from the United Kingdom in a very hype case related to Vijay Malaya, when the Government of India approached to UK for deportation of Vijay Malaya which is denied by the UK Government by the virtue of Existing Laws or Immigration Act, 1971.

Foremost following few question arises in our mind and what we have understand from the existing law;

a. How deportation is possible and what ground?
b. Can competent authority arrest the offender?
c. How one can stay away from such proceeding if made any offence in their passport issuance country?
d. Cancellation of Passport resulting deportation?
e. Can acquire Citizenship?

According to a statement by Ministry of External Affairs (MEA) official spokesperson, “the UK Government has informed that under the 1971 Immigration Act, the UK does not require an individual to hold a valid passport in order to remain in the UK if they have extant leave to remain as long as their passport was valid, when leave to remain or enter the UK was conferred.”

Vijay Malaya Passport has been issued by the government of India for the limited period but if any individual enter the UK and thereafter passport is cancelled by Government of India, if individual is ordinary resident of UK or staying there on valid UK Visa resulting no automatic deportation allowed unless committed any offence in UK.

Vijay Malaya much more aware about the legal provision, hence they have wilfully not paid their loan to bank and return back to UK. In the Case of Vijay Malaya, he has been leaving there since 1992 and according to law provision if any person resides in UK for more than 5 year is automatically become ordinary resident; although can enrol himself for electoral process, after going through the legal provision made thereunder Immigration Act,1971, which has been inserted to protect ordinary resident from deportation and it is possible only on some ground if any infringement by them in that country or the court may order to deportation under various circumstance as defined under Act.

Unlike India, In Britain; citizen of commonwealth country including India can cast their vote if they are the ordinary resident or having legally right to stay there.

Though, UK Government approached to India to seek legal action under extradition treaty which is legally correct, now the charge sheet has to be filed under procedural norms and can consider the extradition request of Government if they approach.

Now the alternative way to bring Vijay Malaya before the Indian courts is very difficulty under extradition treaty as procedural and time taking. Defender to be given an opportunity to be heard and can challenge the Indian Government allegation and after proving the evidence only extradition is possible under the 1992 MLAT(Mutual Legal Assistance Treaty) signed with India and UK. Government has to undergo through various legal process and norms.

There is different rules in various country to becoming a citizen, a country like Malta wherein it is very easy to take citizenship for the richer one who can invest some money in country and take citizenship, although Indian has never executed any agreement with Malta for extradition, hence offender may take asylum in Malta and can live their life and establish business at there.

Grounds of deportation/Removal

There are three grounds under the Immigration Act, 1971 for Deportation of individual from the UK; firstly, if the secretary of state comprehends the deportation is the good for the public at large then deportation order may pass. Second if person belong to or member of any deportee, it should be considered under deportation ground, last but not the least when is recommended by the courts in criminal and other matters, although longer stay and infringement of condition of leave may be ground of removal from country.

Discussion Point: If passport is cancelled by issuing country thenceforth removal of individual must be mandatory from the country where he residing?

Interpretation: To the sake of country interest and public at large, this point will attract three individual or foreigner of other country (a) Permanent resident (b) ordinary resident (c) NRI.

It is very crucial to discuss about the point if Passport is cancelled due to any ground by the Government of India subsequently individual is liable to leave the place and no government can give them asylum. The offence made by them is not acceptable in any manner to the benefit of public and national interest and no one has the right to violate the sovereignty, dignity and integrity of our country.

Always, Permanent resident will stay away from proceeding as long as they stay in country under the permanent citizenship but person having ordinary resident/citizenship and carrying NRI Passport shall liable to be prosecuted and removal from the country if they made any fraud in passport issuing country and later leaves the place then Indian government may have right to detain the individual on ground of such offence.

Our suggestion on Removal & Deportation

However it seems the government is very feeble and efforts of deportation went in vain and discussion to be required on such issues with international community to ensure it could not happen again in any country. It is difficult to convince each country but may keep our view so that at least person covered under ordinary resident may fall under such treaty.

We are the part of United Nations and Commonwealth country can approach the international community to execute treaty with Indian government to removal of individual on such case as discussed above or may extent the area. We may even approach to such country which is outside of UN Purview.

Indeed apprehension may arise and Debate must be appreciated with proper research to be carried out by the Indian Government but we are pretty much sure that this will help us to restrict the person who does such ill- minded act.

At least we may take initiative and restrict the people. We can bring the people here to prosecute under such offence for which he is accused; we can represent our concern and make an agreement to execute such treaty.

Submitted By:

Sunny Kumar, Pursuing Ph.d,
Mewar University, Chittorgarh