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

The Karnataka High Court held that the government has absolute and unrestricted authority to expel foreign nationals who overstay in the country without proper documentation.

The Court dismissed a writ petition filed by a Bangladeshi national challenging the issuance of an exit permit and the imposition of a fee.

The Court noted that foreign nationals do not possess an inherent right to remain in the host nation beyond what is authorized by their documents.

However, the Court directed the Foreigners Regional Registration Office (FRRO) to execute the exit permit without insisting on any fee from the Petitioner.

“The power of Government of India to expel nationals of other countries who overstay in the nation without any document is absolute and unfettered”, the Bench of Justice M Nagaprasanna observed.

Advocate Dore Raj B. H. appeared for the Petitioner, Deputy Solicitor General Shanthi Bhushan H. appeared for the Union and Additional Government Advocate Navya Shekhar appeared for the State.

The Petitioner, a Bangladeshi national, connected with the Fourth Respondent through social media. They met in Kolkata and Chennai during the Petitioner's two visits to India in July and August 2017, leading to their subsequent marriage. Following the expiration of her tourist visa, the Petitioner returned to Bangladesh. She then applied for a visa conversion with the FRRO, converting it to an X-2 dependent visa valid until February 2020. Upon the visa's expiration, the Petitioner sought extensions, with the FRRO extending it to August 21, 2022, and later to June 21, 2023, acknowledging her marriage to an Indian. Challenges arose when seeking a further extension, as the FRRO demanded specific documents, including spousal consent. Initially denied due to the absence of such consent, an exit permit was issued, compelling the petitioner to leave India to avoid deportation.

The Petitioner therefore approached the High Court challenging the issuance of an exit permit which would result in the deportation to Bangladesh.

The Court noted that the regulation of entry, stay, transit, and exit of foreign nationals falls under the purview of several legislative enactments, including 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, along with corresponding Rules. The Bureau of Immigration, with primary responsibility for immigration control, operates through Foreigners Regional Registration Offices (FRRO) nationwide. Foreign nationals seeking various types of visas, from student to e-visa, must approach the FRRO.

The Court further noted that FRRO is empowered to issue approximately 12 types of visas and to perform various functions, including the extension of visas. The registration process involves online applications, and certain individuals are deemed ineligible for admission into India, as outlined on the FRRO website. The Visa Manual, revised to the date, governs the grant of visas.

The Court noted that the Visa Manual addresses the conversion of any visa category into an X-1 Visa for foreign nationals married to an Indian citizen, person of Indian origin, or OCI cardholder.

The Court noted, “there are three necessary conditions for such conversion, one of which is a report about marital status including his or her antecedents and confirmation about their living together and security clearance”.

The Bench noted that Chapter 14 of the Visa Manual focuses on the X Visa category, with X-1 Visa applicable to individuals from other countries. FRRO can extend the X-1 Visa following specific guidelines, contingent upon no adverse reports and no objections from local authorities, including the police. Clause (3) allows for case-by-case extension, provided documentation is fully supported by marital status and a marriage certificate issued by the authorities.

The Bench observed that the Petitioner was a citizen of Bangladesh and initially connected with the Fourth Respondent on social media, and their burgeoning love led to her visit to India and their subsequent marriage.

The Bench noted that the Petitioner initiated a collateral proceeding, seeking maintenance from her husband under Section 125 of the Criminal Procedure Code, 1973 (CrPC), alleging neglect. This action coincided with the FRRO's inquiries and request for mandatory documents. The case was currently pending in the relevant court. Due to a lack of required documents, an exit permit was issued to the Petitioner. Subsequently, the FRRO requested additional documents post-exit permit issuance. Upon scrutiny of the original records, it was observed that one of the conditions for visa extension, the absence of adverse reports and local objections, was met. However, it came to light that the police had notified the FRRO of suspicions regarding the petitioner's stay in Bengaluru, potentially influencing the decision not to extend her visa.

“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 Court reiterated.

In this case, the petitioner's stay in the nation was authorized by an X-1 Visa, which was a dependent visa. Since the dependent visa has expired and an extension was not granted, the Court, by its fiat, cannot direct an extension based on the circumstances of the case. Granting any form of leniency to the Petitioner, the Court noted that it would impose restrictions on the discretionary powers of the Government, the FRRO, and the Bureau of Immigration. This was especially crucial in situations where there is even a perceived threat to national security.

Upon thorough examination of the records and the presented facts, the bench noted that the petitioner was not without fault, as adverse notations were present in the original file.

However, the Court observed that there was no basis for challenging the issuance of the exit permit against the Petitioner. The exit permit stipulates a payment requirement for the Petitioner to leave the nation.

Accordingly, the Court dismissed the Petition.

Cause Title: Raktima Khanum v Union Of India

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