The Authors are Praveen Kumar Chhipa, A.G.M Legal, Shri Ram General Insurance, Prasoon Kumar Advocate and Vartika Maurya, Advocate, Supreme Court of India.
Introduction
The issue of illegal immigration in India occupies a complex intersection of humanitarian obligations, national security concerns, and legal ambiguity. In recent years, the increasing visibility of undocumented populations, particularly from neighbouring and conflict-affected states, has triggered significant policy shifts, including the enactment of the Immigration and Foreigners Act, 2025, aimed at tightening immigration controls. Simultaneously, judicial decisions—such as in Yasmin v. Sri Ram General Insurance Company—highlight the precarious legal status of illegal immigrants and stateless persons in India, particularly concerning access to civil remedies. This paper explores the legal, economic, and social dimensions of India’s response to illegal immigrants within the context of both domestic legislation and international norms.
International Scenario
The phenomenon of illegal immigration continues to pose a multifaceted challenge within the international legal and policy landscape, engaging critical issues related to state sovereignty, human rights, labour law, and international cooperation. Illegal immigrants—defined in legal terms as individuals who enter, reside in, or work within a country without authorization or in contravention of that country’s immigration laws—often migrate due to compelling push factors such as economic deprivation, political instability, armed conflict, systemic human rights violations, and environmental degradation. Jurisdictions across North America, Europe, and Asia have reported increasing levels of irregular migration, prompting legislative and policy responses that attempt to balance the imperatives of national security, economic interests, and international human rights obligations. In the United States, for example, sustained flows of unauthorized migrants, particularly from the Northern Triangle countries of Central America, have led to heightened border enforcement measures and complex litigation surrounding asylum rights and due process protections under both domestic and international law.
In the European Union, the 2015 refugee crisis catalyzed significant legal and policy reforms, including the Dublin Regulation and externalization agreements with third countries such as Turkey and Libya. These measures, while aimed at deterring irregular entry, have raised significant concerns under international human rights and refugee law, particularly with respect to the principle of non- refoulement as codified in the 1951 Refugee Convention and its 1967 Protocol. Similarly, in Southeast Asia, states such as Malaysia and Thailand have been destinations for undocumented migrants, often from Myanmar and Bangladesh, many of whom are employed in informal or exploitative labor markets, thus invoking concerns under international labor standards as promulgated by the International Labour Organization (ILO). In the Gulf Cooperation Council (GCC) states, a large number of undocumented migrant workers are concentrated in sectors that lack adequate legal protections, raising issues under both international labor law and regional human rights frameworks.
Australia’s stringent offshore detention regime for unauthorized maritime arrivals has been subject to widespread scrutiny by international legal bodies, including the United Nations Human Rights Committee, for potential violations of the right to liberty and protection against arbitrary detention under the International Covenant on Civil and Political Rights (ICCPR). The COVID-19 pandemic further exacerbated the precarious situation of undocumented migrants, as border closures and economic disruptions increased their vulnerability while simultaneously exposing host countries’ dependence on migrant labor, particularly in essential services. International organizations such as the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) have emphasized the need for a rights-based and cooperative international approach to irregular migration, including the development of legal pathways, regularization mechanisms, and targeted assistance to address root causes in countries of origin. Ultimately, a sustainable and lawful international response to illegal immigration necessitates a harmonized framework grounded in international law, state accountability, and the equitable distribution of responsibility among nations.
Indian Scenario
In the Indian legal and policy context, the issue of illegal immigration presents a complex challenge, particularly in relation to national security, demographic balance, and human rights obligations. India, due to its extensive land borders and regional geopolitical dynamics, has experienced significant inflows of undocumented migrants, particularly from neighboring countries such as Bangladesh, Myanmar, and, to a lesser extent, Pakistan, Afghanistan, and Sri Lanka. The legal framework governing immigration in India is primarily rooted in the Foreigners Act, 1946, the Passport (Entry into India) Act, 1920, and the Citizenship Act, 1955. These statutes collectively empower the state to detect, detain, and deport foreign nationals who enter or remain in India without valid legal authorization. Notably, the Indian legal system does not currently recognize the category of “refugee” in domestic law, and thus treats all undocumented entrants as illegal immigrants, irrespective of their reasons for migration. This legal lacuna has significant implications for individuals fleeing persecution, such as the Rohingya from Myanmar, whose status remains uncertain and subject to administrative discretion.
The state’s response to illegal immigration has often been shaped by a combination of security concerns, political considerations, and socio-economic pressures. For instance, the National Register of Citizens (NRC) process in Assam sought to identify undocumented immigrants, primarily targeting those suspected of having migrated illegally from Bangladesh. However, the NRC exercise has been criticized for procedural irregularities, lack of transparency, and the risk of rendering individuals stateless, thereby raising concerns under Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty to all persons, regardless of citizenship. Moreover, the enactment of the Citizenship (Amendment) Act, 2019 (CAA), which provides a pathway to Indian citizenship for non-Muslim undocumented migrants from Pakistan, Bangladesh, and Afghanistan, has drawn significant legal and scholarly scrutiny. Critics argue that the Act violates the constitutional principle of equality under Article 14 and introduces a religion-based criterion that could undermine India’s secular constitutional framework.
From an international law perspective, while India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol, it remains bound by customary international law principles, including the prohibition of refoulement, which prohibits the return of individuals to a country where they face a real risk of persecution or serious harm. Despite this, deportation proceedings have been initiated against groups such as the Rohingya, raising questions about compliance with international human rights standards. The lack of a codified refugee protection regime further complicates the legal status and rights of undocumented migrants in India, resulting in arbitrary enforcement and inconsistent policy application. In this context, there is an urgent need for a comprehensive legislative framework that distinguishes between economic migrants and refugees, ensures procedural safeguards, and aligns domestic law with India’s international obligations. Such a framework would not only enhance legal certainty and administrative efficiency but also reinforce India’s commitment to upholding the rule of law and human dignity.
Legal/Constitutional Position
The Indian Constitution, while not explicitly addressing the issue of illegal immigration, provides a framework within which the rights of non-citizens are regulated and enforced, often intersecting with broader questions of sovereignty, national security, and fundamental rights. Although the Constitution primarily guarantees fundamental rights to citizens, several key rights extend to all "persons," including non-citizens, regardless of their legal status. For instance, Article 14 guarantees equality before the law and equal protection of the laws, and Article 21 ensures the right to life and personal liberty—both of which have been judicially interpreted to apply to all individuals on Indian soil, including illegal immigrants. The Supreme Court of India, in cases such as National Human Rights Commission v. State of Arunachal Pradesh reported as (1996) 1 SCC 742, has affirmed that even undocumented migrants are entitled to constitutional protections against arbitrary expulsion or discrimination. However, the Indian state retains broad powers to regulate the entry, stay, and expulsion of foreigners under the Foreigners Act, 1946, which, although predating the Constitution, continues to be the principal statute governing the status and treatment of illegal immigrants. Furthermore, the Citizenship Act, 1955, read with Articles 5 to 11 of the Constitution, outlines the criteria for citizenship acquisition and termination, implicitly excluding those who enter or reside in the country unlawfully.
The constitutional scheme distinguishes clearly between citizens and non-citizens in the conferment of certain rights—such as political rights (e.g., Article 15, Article 16, and Article 19), which are restricted to citizens alone. In this context, illegal immigrants do not enjoy the same privileges and may face deportation or detention as per statutory provisions. However, these powers must be exercised within the bounds of constitutional morality and the principles of natural justice. The Supreme Court has also acknowledged the relevance of international human rights norms, especially when domestic law is silent, thereby reinforcing protections such as the principle of non-refoulement, even though India is not a signatory to the 1951 Refugee Convention. The constitutional tension lies in balancing the state's sovereign authority to control immigration with its obligation to uphold basic human rights. The recent debates surrounding the National Register of Citizens (NRC) and the Citizenship (Amendment) Act, 2019 (CAA) further illuminate this tension, raising constitutional questions regarding equality, secularism, and the rule of law. While the Constitution provides the normative foundation for a rights-based approach, the absence of a specific legal framework for refugees and undocumented migrants
has led to a fragmented and often inconsistent policy environment. Thus, there remains a pressing need to reconcile India’s constitutional commitments with the legal treatment of illegal immigrants through comprehensive legislation that ensures clarity, fairness, and adherence to both domestic and international legal standards.
Illegal Immigrants can be defined as:
A foreigner who has entered India without valid travel documents or who has overstayed the permitted period of stay.
In India, this is primarily governed by:
- Foreigners Act, 1946
- Passport (Entry into India) Act, 1920
- Immigration and Foreigners Act, 2025
Economic Impact
The economic impact of illegal immigrants in India is multifaceted, encompassing both costs and contributions that vary by region and sector. On one hand, undocumented migrants often place pressure on public resources such as healthcare, education, and housing, particularly in densely populated or economically vulnerable states like Assam, West Bengal, and parts of the Northeast. They may also contribute to wage suppression in the informal labor market by accepting lower wages, thereby intensifying job competition among low-income Indian workers. Moreover, their integration into the informal economy often leads to regulatory and tax evasion, weakening institutional labor protections and reducing government revenue. On the other hand, illegal immigrants also fill critical labor shortages in sectors such as construction, domestic work, and small-
scale manufacturing—roles often shunned by local populations. Their participation supports urban economies by contributing to local consumption and sustaining low-cost production and services. However, the absence of reliable data and the informal nature of their economic activity complicate efforts to assess their net economic impact accurately. As a result, the debate around illegal immigration in India remains politically charged, with economic arguments often intersecting with concerns about security, identity, and social cohesion.
Social Impact
The social impact of illegal immigrants in India is complex and often contentious, influencing local communities, public discourse, and national identity narratives. In regions with high concentrations of undocumented migrants—such as Assam, West Bengal, and parts of Delhi and Mumbai—there are concerns about demographic shifts, cultural integration, and the strain on civic infrastructure. Local populations often perceive illegal immigrants as competitors for limited resources such as housing, education, and employment, leading to tensions and, in some cases, social unrest. In Assam, for instance, the perceived dilution of indigenous identity has fueled political mobilization and demands for strict citizenship verification through mechanisms like the National Register of Citizens (NRC). At the same time, many illegal immigrants form close-knit communities and gradually integrate into urban social fabrics through shared language, religion, or economic interdependence. Despite their lack of legal status, they often participate in social networks, religious institutions, and informal markets, shaping local cultural and social dynamics. However, their precarious legal position leaves them vulnerable to exploitation, discrimination, and exclusion from formal
institutions, contributing to social marginalization and reinforcing cycles of poverty. As such, the social impact of illegal immigration in India cannot be understood in isolation but must be examined through the lenses of regional context, identity politics, and access to rights.
Immigration and Foreigners Act, 2025: The Recent Development
The Immigration and Foreigners Act, 2025 marks a significant overhaul of India’s legal framework governing the entry, stay, and regulation of foreign nationals. Replacing older legislations such as the Passport (Entry into India) Act, 1920, and the Registration of Foreigners Act, 1939, this new Act consolidates and modernizes immigration law to address contemporary challenges, particularly the rise in undocumented migration and concerns over national security. A key feature of the Act is the classification of foreigners based on the legality of their stay, enabling stricter action against those who overstay visas, enter with forged documents, or violate the terms of their entry. The law grants expanded powers to the Bureau of Immigration and other authorities, including the ability to detain, deport, blacklist, and fine violators without lengthy judicial procedures. Institutions such as hotels, educational bodies, and healthcare facilities are now mandated to report the presence of foreign nationals, enhancing the state’s surveillance and enforcement capacity. While the Act has been praised for addressing legal ambiguities and bolstering national security, it has also raised concerns regarding civil liberties, due process, and the potential for arbitrary action, especially in the absence of a comprehensive refugee protection framework. Overall, the Immigration and Foreigners Act, 2025 reflects India's evolving stance on immigration control, balancing administrative efficiency with the complexities of migration in a globalized world.
Status of Refugees/Illegal Immigrants with respect to Motor Accident Compensation
In a case titled as Yasmin vs. Sri Ram General Insurance Company (hereinafter referred to as SGIC), the Motor Accident Claims Tribunal, Jammu presided over by Ritesh Kumar Dubey, dismissed a compensation claim filed by a Rohingya individual injured in a road accident in Narwal. The tribunal ruled that the petitioner, being an illegal immigrant, is not entitled to compensation under the Motor Vehicles Act. The facts of the case are such that on 09.04.2018, at around 06:30 pm, the injured was proceeding as pedestrian which was hit by the offending vehicle resulting in grievous injuries to the injured. Mr. Praveen Kumar Chhipa appeared on behalf of SGIC and submitted before the Tribunal that the injured party being an illegal immigrant, was not a third party in this case and that she has not been given asylum as a refugee by the Government of India. Therefore, she is not entitled to any relief under Indian statutes, which are otherwise available to the non-citizens.
The judgment emphasized that:
- Illegal immigrants are viewed as potential security threats.
- Granting such claims could encourage illegal immigration.
- Equal protection under Indian law applies only to those legally present in the country.
- Even if others in similar situations have received compensation, there is no legal obligation to continue doing so, as there is no estoppel against the law.
Therefore, the claim was rejected on legal and security grounds.
Conclusion
In the absence of a codified national asylum framework, India’s approach to refugee protection and the management of illegal immigrants continues to be guided by a patchwork of outdated statutes, executive discretion, and judicial interpretation. While the Immigration and Foreigners Act, 2025 represents a significant legislative step toward modernizing immigration control, its focus on enforcement and surveillance underscores the government’s growing emphasis on national security over humanitarian considerations. The legal exclusion of undocumented migrants from certain protections, as evidenced in judicial rulings like the Yasmin case, reveals systemic gaps in ensuring equitable access to justice for vulnerable populations. Although India upholds the principle of non- refoulement in practice and maintains cooperation with UNHCR, the lack of a comprehensive refugee law leaves many asylum seekers and stateless persons in a state of legal uncertainty. Going forward, a balanced framework that reconciles sovereign security concerns with humanitarian commitments is essential for addressing the evolving challenges of migration in a globalized world.
