India’s New Immigration Law Leaves Refugees, Especially Rohingyas, in Legal Limbo

A Rohingya refugee living in India can now be detained and deported without ever appearing before a court of law. There is no guaranteed hearing, no clear standard of proof and no statutory protection against being sent back to danger. This is not an unintended consequence of the new law.

The Immigration and Foreigners Act, 2025 claims to repeal four colonial-era statutes in favour of a single, consolidated framework. The more important question, however, is whether this repeal is substantive or merely formal. In practice, the law repackages these enactments while leaving largely untouched the colonial logic that has long structured India’s immigration system.

Why this law, and why now?

The enactment of this law coincides with a broader global hardening of immigration regimes, particularly in the United Kingdom and the United States, where migration is increasingly framed as a security threat rather than as a human reality shaped by conflict, inequality, survival and the search for opportunity. This raises an uncomfortable possibility: is India aligning itself with an emerging anti-immigration orthodoxy of the Global North?

This concern is underscored by recent political rhetoric surrounding the deportation of undocumented Indian migrants from the US. Earlier this year, Indian nationals were deported in handcuffs under conditions widely criticised as inhumane. Yet, responding in Parliament, External Affairs Minister S. Jaishankar characterised these deportations as routine rather than as rights violations. The absence of any substantive objection to either the treatment of migrants or the logic underpinning their removal reflects an acceptance of the West’s migration framework that reduces mobility to illegality and normalises heavy handed enforcement. It is this same logic that resurfaces in India’s own immigration law.

Executive power and the erosion of due process

Under the new law, decisions about who is “legal,” “illegal,” or a “foreigner” are made not by courts of law but by Foreigners Tribunals, quasi-judicial bodies constituted and administratively controlled by the executive. When the same state machinery that identifies a person as an “illegal migrant” also controls the forum that adjudicates that claim, independent scrutiny is sharply limited.

The experience of Foreigners Tribunals in Assam offers a cautionary preview. Reports by Amnesty International have documented widespread arbitrariness, including inconsistent reasoning, reversed burdens of proof, and ex parte orders that have rendered individuals stateless. By extending this model nationwide without clearly strengthening procedural safeguards, the new law risks reproducing these failures on a much wider scale.

Also read: 'Dangerous Precedent': Former Judges, Senior Lawyers Write to CJI Over His Remarks on Rohingyas

More troublingly, the statute remains largely silent on the procedures governing detention and deportation. It does not clearly specify standards of proof, limits on detention, access to legal counsel, or meaningful avenues of appeal. This omission-laden framework is especially dangerous for refugees and asylum seekers such as the Rohingya. Contemporary border regimes rarely rely on overt violence; instead, they operate by withdrawing legal protection, exposing people to detention, exploitation, and even death. This exposure to harm is not incidental but a central feature of contemporary border politics.

Refugees without recognition, courts without guidance

Perhaps the most consequential omission in the new law is its complete silence on refugees and asylum seekers. India has no dedicated refugee legislation and has not ratified the 1951 UN Refugee Convention or its 1967 Protocol. In this context, an immigration statute that fails to distinguish refugees – most starkly the Rohingya – from other migrants collapses vastly different legal and humanitarian realities into a single administrative category.

In the absence of legislative clarity, courts are inevitably forced to intervene through constitutional adjudication. Indian courts have, at times, relied on Article 21 to extend limited protections to refugees, including Rohingya individuals facing deportation. But judicial discretion is a precarious substitute for law. Outcomes vary across jurisdictions and benches, shaped by the limits of individual cases and judges, rather than by a coherent legal framework. A constitutional democracy cannot outsource refugee protection to judicial law-making.

Everyday borders

Immigration enforcement today no longer operates only at territorial borders. Across countries, it has moved into everyday spaces. Governments increasingly require private actors to verify and report immigration status, turning ordinary interactions into sites of immigration control.

India’s new law reflects this shift. It imposes reporting and verification obligations on hotels, universities, carriers and other non-state actors, with penalties for non-compliance. What emerges is an “everyday border,” where access to basic services becomes contingent on documentation.

For Rohingya families, the effects are immediate. Securing housing becomes difficult. Schools hesitate to enrol children. Healthcare providers grow cautious. Exclusion occurs quietly and administratively, often without a formal detention or deportation order.

Selective humanitarianism and constitutional unease

Finally, the exemption clause in the new law raises serious constitutional concerns. It exempts minority communities from specified neighbouring countries who entered India before 2015, explicitly naming Hindus, Sikhs, and Christians while excluding Muslims. This selective humanitarianism, grounded in religious identity, demands scrutiny. Why is religion deployed as a gatekeeping criterion in an immigration framework, and what constitutional logic sustains such differentiation?

As scholar Harsha Walia has observed, “law constructs illegality, while racism constructs the illegal.” Read in this light, the exemption introduces religion as a gatekeeping criterion in immigration law, departing from constitutional commitments to equality and secularism while deepening vulnerability for groups such as the Rohingya.

Though framed as administrative consolidation, the new immigration act creates expansive legal grey zones by centralising discretion in the executive, weakening procedural safeguards, and remaining silent on asylum. These ambiguities are not abstract; they have tangible human consequences, felt most acutely by undocumented migrants and refugees such as the Rohingya, who already exist in a state of legal limbo in India.

As scholar Tally Kritzman-Amir has observed, immigration law increasingly “shifts its focus: from migrants to migration, from the causes of movement to the hardship and political interests of the destination state, and from other-regarding ethics… to nationalist self-interest ethics.” India’s new law reflects this turn, prioritising sovereign control over humanitarian obligation and administrative efficiency over constitutional safeguards, leaving those already at the margins even further exposed.

Jayalakshmi Itla Ragiri is an international human rights lawyer specialising in Rohingya rights and accountability.

This piece was first published on The India Cable – a premium newsletter from The Wire – and has been updated and republished here. To subscribe to The India Cable, click here.

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