Government Has Absolute And Unrestricted Authority To Expel Foreign Nationals Overstaying Without Proper Documentation: Karnataka HC

While taking the right step in the right direction and abiding strictly as per law, the Karnataka High Court in a most learned, laudable, landmark and latest judgment titled Raktima Khanum vs Union of India in Writ Petition No. 26769 of 2023 (GM-RES) that was pronounced as recently as on January 5, 2024 has minced just no words to hold in no uncertain terms that the government of India has absolute and unrestricted authority to expel foreign nationals who overstay in the country without proper documentation. We must note here that the Karnataka High Court dismissed the writ petition that had been filed by a Bangladeshi national named Raktima Khanum who was challenging the issuance of an exit permit and the imposition of a fee. It must be mentioned here that the High Court noted that foreign nationals do not possess an inherent right to remain in the host nation beyond what is authorized by their documents.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna of Karnataka High Court sets the ball in motion by first and foremost putting forth in para 1 that, "The petitioner is before this Court calling in question issuance of an exit permit to the petitioner which would result in deportation of the petitioner to Bangladesh."

To put things in perspective, the Bench envisages in para 2 that, "Facts adumbrated are as follows:-

The petitioner is a Bangladeshi national, born and brought up there. Through social media it transpires, the 4th respondent comes in contact with the petitioner, after which, it is the averment that the petitioner came twice to meet respondent No.4 on her own expenses in July and August 2017 from Bangladesh, once at Kolkata and again at Chennai. The two then fall in love. The petitioner marries the 4th respondent on 25-12-2017. It is claimed by the petitioner, that the 4th respondent converted himself to Islam, on falling in love and subsequent marriage. After the marriage, it is the averment in the petition that the couple lived in Chennai. The relationship between the two flounders. On the said floundering of the relationship, the petitioner had to go back to Bangladesh, as the tourist visa under which she was staying in India expired. Several other averments are made in the petition, which are not germane for consideration of the lis. It would suffice, if the narration is fast forwarded to 01-03-2019 when the petitioner applies for a visa conversion before the 2nd respondent/Foreigners Regional Registration Office (‘FRRO’ for short). The tourist visa was then converted into entry visa (X-2), which is a dependent visa. This was to be valid from 1-03-2019 to 29-02-2020. On the expiry of the said visa, in the month of February 2020, the petitioner applies for extension of visa and the FRRO extends the visa from 22-02-2022 to 21-08-2022 for a period of six months, with an observation that the petitioner is married to an Indian and permission is granted, only on that score."

As it turned out, the Bench enunciates in para 3 that, "The said visa expired on 20-08-2022. A letter for extension was submitted to the FRRO and the FRRO extended the visa from 22-08-2022 to 21-06-2023. After the expiry of the period of visa i.e., on 21-06-2023, extension was sought by the petitioner. It is here the FRRO begins to demand certain documents for the petitioner’s stay in India. One such document that was demanded was an undertaking/consent from sponsors/parents/spouse in support of her stay in India, as she was on X-2 visa, a dependent visa. The request of the petitioner was not considered initially on the score that the documents did not bear the consent of the husband. After non-consideration of extension of visa, an exit permit is issued against the petitioner, to leave India or she would be deported as there was no valid visa for her to stay in the country. It is this development that has driven the petitioner to this Court in the subject petition."

Needless to say, the Bench states in para 7 that, "I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record including, the sealed cover material."

Do note, the Bench notes in para 9 that, "The matters relating to entry, stay, transit and exit of foreign nationals is governed by the provisions of the Passport (Entry into India) Act, 1920, Registration of Foreigners Act, 1939, Foreigners Act, 1946, the Immigration (Carrier Liability) Act, 2000 and the Citizenship Act, 1955 and the Rules in furtherance of the aforesaid enactments. The immigration control is the primary responsibility of Bureau of Immigration. The Bureau of Immigration carries out all immigration responsibilities through FRRO all over the country. The foreign nationals shall approach FRRO for issue of various kinds of Visas from student to e-visa. FRRO is empowered to issue about 12 kinds of Visas. Once the Visa is issued the functions of FRRO qua foreign nationals residing in any State are manifold. One such function is extension of Visa. Procedure for registration is by way of an application being made on-line. It is said to be passing through several rungs of offences. Several persons are ineligible for admission into India. They are depicted on the website of FRRO itself. The broad functioning of FRRO is as afore said. Grant of Visa is in terms of Visa Manual revised to this date."

Briefly stated, it cannot be lost on us that the Bench points out in para 14 that, "One of the conditions of extension is that there should be nothing adverse reported and no local objection, both of which are found in the case at hand. It appears that the Police themselves have intimated to the FRRO that visa to the petitioner should not be extended as there is suspicion about her stay itself in Bengaluru." The communication dated 25-09-2022 by the Station House Officer of Subramanyanagara Police Station to the FRRO is also mentioned in this para. It is also most notably pointed out in this very para 14 in its concluding part that, "The recommendation of the Station House Officer is that, the extension of visa should not be granted. What is adverse against the petitioner is also borne out from original records. The history of the petitioner is traced in the original records. Between 2003 and 2005 it appears that the petitioner was working in Thailand Embassy office at Dhaka, Bangladesh and in many of the airlines later."

Be it noted, the Bench notes in para 15 that, "The learned Deputy Solicitor General of India Sri.H. Shanthi Bhushan has secured and produced original records for perusal of the Court and has also filed detailed statement of objections. A perusal at the record so submitted would indicate plethora of conversations through whatsapp, face book or other social media platform of the petitioner with the head or members of SSG. The SSG as borne out from the original records appears to have links with the army of the neighbouring nation. Since these are classified documents, they are not quoted in the course of this order. But, a perusal at the original records, as observed hereinabove, leaves none in doubt that the actions of the petitioner in India are suspicious. Therefore, retention of the petitioner on any sympathy being shown on the submission that she is now left in the lurch by the 4th respondent – husband, would pose a serious threat to the security of the nation. It is rather surprising that when FRRO has all the information about the antecedents of the petitioner, strangely they are worried about payment of fee to send the petitioner out from the soil of the nation. Therefore, the FRRO or the Bureau of migration, as the case would be, without brooking any delay must act swiftly and execute the exit permit."

Most significantly, most remarkably and most forthrightly, the Bench mandates in para 16 postulating that, "It is trite that no citizen of any other nation can project any semblance of a right to remain on the soil of the nation beyond what the documents permit. The documents, in the case at hand, permit stay of the petitioner in the nation on an X-1 Visa which is a dependent Visa. The dependent Visa has now expired, extension of the same is not granted and by a fiat of this Court extension cannot be directed to be granted in the facts of the case. The power of Government of India to expel nationals of other countries who overstay in the nation without any document is absolute and unfettered. Any indulgence shown to the petitioner, on any kind of sympathy, would be putting fetters on the discretion of the Government, the FRRO and the Bureau of Immigration, more so in cases where there is even a semblance of threat to national security of any kind."

It is worth noting that the Bench notes in para 17 that, "An unmistakable inference that would emerge from the perusal of the records and the facts as narrated hereinabove is that the petitioner is not blame free. Adverse notings are available in the original file. Therefore, no fault can be found with the exit permit that is issued against the petitioner. What is projected in the exit permit is that the petitioner has to pay some amount to the FRRO to leave the nation. In the facts and circumstances of the case, I direct the FRRO to execute the exit permit without insisting on any fee from the petitioner."

Finally and as a corollary, the Bench then concludes by holding precisely in para 18 that, "For the aforesaid reasons, the following:

ORDER

(i) Writ Petition is dismissed.

(ii) The exit permit issued to the petitioner stands sustained.

(iii) The FRRO shall not insist upon any payment by the petitioner to leave the country.

(iv) The FRRO shall consider exit of the petitioner from the shores of the nation without brooking any delay after following due process of law.

(v) Interim order, if any subsisting, stands dissolved."

In sum, we thus see in this noteworthy judgment that the Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna of Karnataka High Court has made it indubitably clear that the government has an absolute and unrestricted authority to expel all such foreign nationals who are overstaying in India without proper documentation. There can be thus just no gainsaying that it is the bounden duty of all the Judges of India to always emulate and rule similarly as has been ruled in this leading case in similar such cases. No denying or disputing it!