XII. Unregistered Refugees in Nepal and India
The U.S. offer of resettlement for up to 60,000 Bhutanese refugees is a major development that promises to provide a durable solution for a significant proportion of the Bhutanese refugees. Other countries, including member states of the core group,227 that have indicated a willingness to resettle Bhutanese refugees should take the next steps and indicate how many refugees they will be willing to resettle and details about the time frame, process, and rights and entitlements of the resettlement package.
If the ultimate aim is, as it must be, to bring an end to the Bhutanese refugee crisis, it must be clear from the outset what the true scale of the problem is. While the refugees in the camps in Nepal constitute the majority of the ethnic Nepalis who fled or were forced to leave Bhutan, significant populations of Bhutanese refugees reside outside the camps, in both Nepal and India.
The government of Nepal estimates that between 10,000 and 15,000 Bhutanese have settled in Nepal outside the camps.228 They fall in a number of different categories. Some Bhutanese, wanting to avoid the dependency of life in the camps, never registered as refugees in Nepal. Instead, they settled amongst the Nepalese and tried to make their own living.
Other Bhutanese have applied for refugee status in Nepal, but are still waiting for a decision. The Nepalese government recognized all Bhutanese refugees who arrived in Nepal prior to June 1993 on a prima facie basis. In June 1993 the government instituted individual refugee status determination (RSD) procedures for all new Bhutanese arrivals.229 With the start of the joint verification exercise in Khudunabari camp in early 2001, however, the government suspended all RSD activities, and it was not until October 2003 that the RSD operation was resumed.230 By the end of 2004 the government had decided all applications that had been pending when RSD was suspended in late 2000. However, the government of Nepal has continued to receive applications from people claiming to be Bhutanese refugees who have never gone through the RSD process, and the RSD process continued until it was suspended again with the start of the census in the camps in November 2006. UNHCR is aware of 1,343 individuals who have yet to receive a decision on their asylum claim.231
On November 15, 2006, UNHCR and the government of Nepal began a joint census in the refugee camps. The census is in fact a re-registration: its purpose is to consolidate different data sets held by UNHCR, the government of Nepal, and the camp authorities. In principle, people whose names are not registered on at least one of these lists are not included in the census. However, by early February several hundred people claiming to be non-registered Bhutanese refugees had approached the census team. In a welcome development the government of Nepal has agreed to register these people as asylum seekers.232 The government must now ensure that all Bhutanese asylum seekers receive a decision on their application for refugee status. Those who are found to be refugees should be considered for resettlement on the same basis as the Bhutanese refugees in the camps.
One category of particular concern is that of unregistered refugee children. A significant number of children who were born in the camps did not have their births registered. The government of Nepal has now agreed to include all such children in the census. Children born to a refugee father and a refugee mother are themselves registered as refugees, as are children born to a refugee father and a Nepalese mother. However, children born to a refugee mother and a Nepalese father are not considered to be refugees by the government of Nepal, and are not registered as such.233 In principle, these children qualify for Nepalese citizenship under Nepals citizenship law. In practice, many of these children are not able to acquire Nepalese citizenship, particularly where the father has abandoned the refugee mother and her children. Nepal must ensure that it acts in accordance with its obligations under the Convention on the Rights of the Child (CRC).234 Under article 7 of the CRC:
Nepal must therefore ensure that all children who are entitled to Nepalese citizenship under its citizenship law because they are born to a Nepalese father, and who for that reason are not considered to be refugees by Nepal, receive the necessary administrative assistance to facilitate the acquisition of citizenship. Failure to do so would leave these children in the worst possible situation; not only would they be stateless, but without refugee status they would also be excluded from all prospects of a durable solution.235
India hosts a significant population of Bhutanese refugees; estimates of the numbers of ethnic Nepalis from Bhutan who reside in India range from 15,000 to 30,000.236 India is not a party to the 1951 Refugee Convention or its 1967 Protocol, and has no national refugee legislation. However, India is a member of UNHCRs Executive Committee.237 UNHCR undertakes refugee status determination under its mandate for refugees from countries other than Tibet, Sri Lanka, and Bangladesh.238 However, UNHCR has not considered any Bhutanese refugees in India for refugee status.
The absence of a legal framework for refugee-status recognitionor lack of access to proceduresdoes not obviate the reality of being a refugee. As UNHCRs Handbook on Procedures and Criteria for Determining Refugee Status notes:
Because the ethnic Nepalis from Bhutan who reside in India were expelled from Bhutan or fled Bhutan for the very same reasons as the ethnic Nepalis who are recognized as refugees in Nepal, they should also be considered as refugees.
Some of the Bhutanese refugees in India resided in the camps in Nepal for a number of years before going to India, but others came to India after they found that they could not get refugee status in Nepal. Yet others never went to Nepal and stayed in India after having fled Bhutan. All of them live on the margins of society, without citizenship and with no legal status in India.240
Many of those residing in India were among the poorest of the ethnic Nepali population in Bhutan. They did not have the resources to make it as far as the refugee camps. Several told Human Rights Watch that they fled across the border in the hope that the intimidation would soon cease, allowing them to go back. A 61-year-old woman said:
However, unlike the children in the refugee camps, this woman's children had no access to education. We were very poor, she said. My children had to work so we could eat.242
Another woman also said that she never tried to go to the refugee camps because, We had no idea about them.243 One man said that he had tried to register as a refugee in Nepal, but the authorities refused his application. He said he felt sad because if he had moved to the camps his children would have been educated. He said that he had not tried to apply for Indian citizenship, but when he had to go to government hospitals he claimed to be Indian.244
Bhutanese refugees in India told Human Rights Watch that they are as much in need of a durable solution as the Bhutanese refugees in Nepal. One Bhutanese refugee in India said, I have heard about the U.S. proposal [resettlement offer]. If they [the refugees in Nepal] go, why not us? We were evicted from the same villages, for the same reason.245 Another Bhutanese refugee in India said, Whenever people from the international refugee organizations come, they go to the camps [in Nepal]. Of course, there are many more refugees there, but we are forced to live here and can go nowhere. We are trapped.246
The Bhutanese refugees in India have as little hope of repatriation to Bhutan as the Bhutanese refugees in Nepal. Moreover, the conditions under which they currently reside in India do not represent a durable solution, since they do not enjoy legal safety in India. They should also be offered a durable solution, either by being allowed to legalize their status in India, or by being included in the resettlement efforts currently underway for the Bhutanese refugees in Nepal.
227 The core group comprises Australia, Canada, Denmark, Netherlands, New Zealand, Norway, and the United States.
228 UNHCR-Nepal, Bhutanese Refugees in Nepal, August 2003, p. 1. See also Farzana Shaikh, Nepal: Early Warning Analysis, Writenet Report, August 2004, http://www.unhcr.org/publ/RSDCOI/4186626c4.pdf (accessed January 25, 2007), p. 9.
229 In 1993 Nepal adopted an internal directive for refugee status determination for Bhutanese asylum seekers called Modus Operandi of the Screening Operation Post for Asylum-seekers from Bhutan at Kakarbhitta. UNHCR-Nepal, Bhutanese Refugees in Nepal, August 2003, p. 5. UNHCR-Nepal exercises its mandate to conduct refugee status determination for asylum seekers from countries other than Bhutan. UNHCR, Country Operations Plan 2006 Nepal, September 1, 2005, http://www.unhcr.org/cgi-bin/texis/vtx/rsd/rsddocview.pdf?tbl=RSDCOI&id=4332c56e2 (accessed January 26, 2007), p. 1.
230 UNHCR-Nepal, Bhutanese Refugees in Nepal, August 2003, p. 5; and email from UNHCR-Nepal to Human Rights Watch, March 12, 2007.
231 This includes people who, when the RSD process was resumed in October 2003, stated that they had never received formal notification of the rejection of their asylum claim at first instance, and who had therefore failed to lodge an appeal. The government of Nepal agreed to receive the appeals of the people concerned. Email from UNHCR-Nepal to Human Rights Watch, March 12, 2007.
232 Email from Abraham Abraham, UNHCR-Nepal to Human Rights Watch, February 8, 2007.
233 Email from UNHCR-Nepal to Human Rights Watch, February 2, 2007; and email from UNHCR-Nepal to Human Rights Watch, March 12, 2007.
234 Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990. Nepal ratified the CRC on September 14, 1990.
235 For the same reasons, Nepal should grant Nepalese citizenship to children of rejected asylum seekers who would otherwise be stateless.
236 See U.S. State Department, Bureau of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices 2006: Bhutan, March 6, 2007, http://www.state.gov/g/drl/rls/hrrpt/2005/61706.htm (accessed January 25, 2007) (15,000 Bhutanese refugees in India); Farzana Shaikh, Nepal: Early Warning Analysis, Writenet Report, August 2004, http://www.unhcr.org/publ/RSDCOI/4186626c4.pdf (accessed January 25, 2007), p.9 (20,000 Bhutanese refugees in India); Minorities at Risk, Assessment for Lhotshampas in Bhutan, http://www.cidcm.umd.edu/inscr/mar/assessment.asp?groupId=76001 (accessed February 19, 2007) (30,000 Bhutanese refugees in India).
237 ExCom membership does not require accession to the Refugee Convention or Protocol, but requires only a demonstrated interest and devotion to the solution of refugee problems and membership in the United Nations or its specialized agencies. UNHCR, How to apply for ExCom membership, http://www.unhcr.org/excom/418b5ecc4.html (accessed February 19, 2007).
238 UNHCR, Country Operations Plan 2006 India, September 1, 2005, http://www.unhcr.org/cgi-bin/texis/vtx/rsd/rsddocview.pdf?tbl=RSDCOI&id=4332c6232 (accessed February 19, 2007), p. 1.
239 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, reedited January 1992, para. 28.
240 The border between Bhutan and India is an open border for Bhutanese citizens. However, ethnic Nepalis who were expelled from Bhutan and were stripped of their Bhutanese citizenship do not enjoy the same freedoms in India as people with Bhutanese citizenship. One Bhutanese refugee in India said, If you get into trouble with the police, if they find out youre Bhutanese, the Indian police will take you to the Nepal border. If you come from Bhutan in a car with Bhutanese number plates, then you are not troubled: it is a free border for Bhutanese citizens. Human Rights Watch interview (K52), details withheld.
241 Human Rights Watch interview with Bhutanese refugee living in India (M4), details withheld.
242 Human Rights Watch interview with Bhutanese refugee living in India (M4), details withheld.
243 Human Rights Watch interview with Bhutanese refugee living in India (M6), details withheld.
244 Human Rights Watch interview with Bhutanese refugee living in India (M7), details withheld.
245 Human Rights Watch interview with Bhutanese refugee living in India (K60), details withheld.
246 Human Rights Watch interview with Bhutanese refugee living in India (K64), details withheld.