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Tibet's Stateless Nationals II TIBET’S STATELESS NATIONALS II: TIBETAN REFUGEES IN INDIA A report by TIBET JUSTICE CENTER September 2011 440 Grand Avenue, Suite 425 Oakland, CA 94610 USA +1 510-486-0588 [email protected] www.tibetjustice.org 2 Tibet’s Stateless Nationals II: Tibetan Refugees in India TABLE OF CONTENTS I. Executive Summary ..................................................................................................... 5 II. Methodology ................................................................................................................ 19 III. Background: Sino-Indian Relations ......................................................................... 20 IV. Indian Policy Toward Tibetan Refugees: Continuity and Change ................... 25 A. The First Wave (1959-1979): Tibetan Refugees Entering India After the Lhasa Uprising, and the First Tibetan Settlements in India ................................................................................................................... 25 1. Humanitarian Aid and Early Settlements ............................................ 27 2. Status Issues .............................................................................................. 31 B. The Second Wave of Arrivals (1980-1993) ....................................................... 33 C. The Third Wave of Arrivals (1994-1999) .......................................................... 35 D. Refugees Arriving Between 2000 and the Present ......................................... 37 V. Legal Overview ........................................................................................................... 40 A. Indian and International Legal Framework .................................................... 40 B. Documentation ..................................................................................................... 44 1. Registration Certificates (RCs) ............................................................... 44 2. Identity Certificates (ICs): International Travel ................................... 48 3. Special Entry Permits ............................................................................... 49 C. Citizenship ........................................................................................................... 51 1. The Formal State of Indian Law ............................................................. 51 2. Application in Practice to Tibetans ........................................................ 52 VI. The Status of Tibetan Refugees Residing in or Transiting through India ........................................................................................................................... 58 A. Introduction ......................................................................................................... 58 B. Current Population of Tibetans in India .......................................................... 59 C. Settlements ........................................................................................................... 60 D. Health ................................................................................................................... 62 E. Education .............................................................................................................. 63 F. Property Ownership ............................................................................................ 64 G. Employment ........................................................................................................ 65 H. Freedom of Speech, Expression, and Assembly ............................................. 68 I. Relations Between Tibetan and Indian Communities ..................................... 71 VII. Conclusion ................................................................................................................. 73 VIII. Acknowledgements ................................................................................................ 73 IX. Appendix: Table of Contents ................................................................................... 75 I. Indian Constitution and Statutes ........................................................................ 76 1. The Citizenship Act, 1955 ........................................................................ 76 2. The Foreigners Act, 1946 ......................................................................... 95 3. Indian Bare Acts: The Registration of Foreigners Act, 1939 ............... 105 4. Selections from the Constitution of India: ............................................ 108 II. Documents Issued by the Government of India: ............................................ 113 © Tibet Justice Center 2011 Tibet’s Stateless Nationals II Tibetan Refugees in India 3 5. Identity Certificate: .................................................................................. 113 6. Registration Certificate: ........................................................................... 118 III. Laws of the People’s Republic of China ......................................................... 122 7. Nationality Law of the People’s Republic of China: ........................... 122 IV. US State Department Documents .................................................................... 125 8. Unclassified Cables: ................................................................................. 125 V. Canadian Documents ......................................................................................... 128 VI. Tibetan Government in Exile Documents ...................................................... 132 9. Kashag Circular: ....................................................................................... 132 10. Tibetan Birth Certificate .......................................................................... 134 11. Tibetan Green Book and Translation ..................................................... 135 © Tibet Justice Center 2011 4 Tibet’s Stateless Nationals II: Tibetan Refugees in India Nota Bene Tibet Justice Center (TJC) began research for this report in 2003 and carried out additional research, through 2011, in order to reflect new developments and further clarify the issues. We owe thanks to the many TJC volunteers, staff, and board members who contributed to the report and whose efforts we acknowledge below, pages 73-74. At the outset, however, we must acknowledge with gratitude the generous pro bono work carried out for TJC by Eileen Kaufman, Professor of Law, Touro College. With TJC’s permission, Professor Kaufman published some of her field research and legal conclusions in Shelter From the Storm: An Analysis of U.S. Refugee Law as Applied to Tibetans Formerly Residing in India, 23 GEO. IMMIGR. L.J. 497 (2009). TJC and the Georgetown Immigration Law Journal agreed to this arrangement. Much of this report therefore overlaps with, and at times reproduces verbatim, parts of Professor Kaufman’s article. But insofar as discrepancies may exist, this report represents TJC’s most current research. TJC alone bears responsibility for any errors or omissions. © Tibet Justice Center 2011 Tibet’s Stateless Nationals II Tibetan Refugees in India 5 I. Executive Summary For more than two decades, as part of its immigration work, Tibet Justice Center (TJC) has sought to provide lawyers, immigration officials, judges, and other government decision-makers with clear and accurate information about the legal status and circumstances of undocumented Tibetans abroad. Some of these Tibetans eventually petition for asylum, withholding of removal, or other relief in the United States, Canada, Switzerland, and elsewhere. In this context, their legal status vel non in a third state may emerge as an issue that potentially affects their eligibility for asylum or other relief. In 2002, after carrying out an extensive fact-finding mission to Nepal, TJC published a report setting forth the legal status and circumstances of undocumented Tibetans residing in or transiting through Nepal.1 Since then, we have sent fact-finding missions to India and conducted secondary research to clarify the analogous—but, as it turns out, even more complex—legal issues that frequently arise for undocumented Tibetans residing in or transiting through India. This report, Tibet’s Stateless Nationals II: Tibetan Refugees in India, is thus the product of research by TJC that took place over the course of nearly a decade. Like our report on undocumented Tibetans in Nepal, the principal objective of this report is to explain the legal status of and circumstances of life for Tibetan “refugees”2 residing in or transiting through India—whether in flight from persecution or otherwise. For centuries before Tibet’s military occupation and subsequent annexation by China in 1951, the peoples of India and Tibet enjoyed mutually beneficial cultural, economic, and religious ties by virtue of extensive commerce, cultural exchange, and diplomatic communication across what is now the Sino-Indian border. This amicable relationship continued during the era of British rule in India and into the first few years of India’s independence. But less than five years later, the Chinese People’s Liberation Army (PLA) of Mao Zedong occupied Tibet and 1 TIBET JUSTICE CENTER, TIBET’S STATELESS NATIONALS: TIBETAN REFUGEES IN NEPAL (2002) [hereinafter TIBET’S STATELESS NATIONALS I]. 2 N.B. For purposes of this report, “Tibetan refugee” refers to any Tibetan residing in India without Indian citizenship or transiting through India without the documents India
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