‘Visa is a conditional permission’: Karnataka HC dismisses Australian’s plea against 2019 Leave India Notice

The bench in its order also held that the Leave India Notice did not suffer from arbitrariness or non-application of mind and was founded on relevant documentary material, including the employer’s admission regarding irregular recruitment.

Justice Govindaraj said, “A visa is a conditional permission to enter India and does not confer an indefeasible or vested right to remain for its entire duration.”

What happened in 2019

Kamolins was issued an employment visa on January 8, 2018, permitting multiple entries into India and valid until January 7, 2020. The said visa was issued on the basis of his proposed employment as general manager of Fisher and Paykel Health Care India Private Limited, an Indian subsidiary of Fisher and Paykel Health Care Limited, a New Zealand-based multinational corporation.

The company is engaged in the manufacturing, design, and marketing of medical devices used in respiratory care, acute care, and the treatment of obstructive sleep apnea.

The company, while seeking the visa for Kamolins, submitted that on an internal review, it found that senior management working in India was engaged in practices inconsistent with the company’s global ethics, principles, and corporate culture. Thus, their services were discontinued, and the petitioner was appointed as general manager.

Prior to Kamolins’s appointment, the company claimed it conducted enquiries to identify a suitable Indian candidate for the position, but none was found. However, the company had not furnished any details of any recruitment process.

On a complaint received by the Ministry of Home Affairs, allegedly by a former employee, the Foreigners Regional Registration Office (FRO) undertook the inquiry and subsequently issued the Leave India Notice on June 19, 2019.

What the petitioner argued

Senior Advocate K G Raghavan, appearing for the petitioner, primarily contended that the Leave India Notice was issued without furnishing any reasons and without affording an opportunity of hearing and was thus in contravention to the principles of fairness and procedural propriety.

Further, he said, the FRRO is not vested with power under the statute to virtually cancel a visa issued by the High Commission through the mechanism of a Leave India Notice. Moreover, the issuance of the notice entails civil consequences and disrupts his employment, and impacts his personal and professional standing, he added.

Why the Centre opposed the petition

Additional Solicitor General Aravind Kamath contended that since the petitioner has left India and his visa had expired, there was no subsisting order operating against him that calls for adjudication. The issuance of the Leave India Notice was not arbitrary. It was a lawful regulatory response to material irregularity as admitted by the employer in their response to the authority, he said.

Kamath also pointed out that Kamolin’s held a Bachelor’s degree in Nursing and Graduate Certificate in Critical Care Nursing. These qualifications do not justify the displacement of Indian managerial talent in a general managerial role as there are innumerable persons with the same qualifications in India, he said. “India has no dearth of qualified and experienced professionals in such fields,” it was said.

Details were also provided of the petitioner travelling to India on a business visa in January 2020 and later on a tourist visa in May 2024 after leaving India. It was submitted that both visas were granted by the competent authorities. These negate the allegation of blacklist, prohibition, or continuing stigma within the Indian immigration system, it was submitted.

How the court ruled

The bench in its order noted that Kamolin was a contractual employee of a foreign multinational subsidiary. He had no claim to Indian citizenship, nor did his expulsion separate him from an Indian family. His right to stay was purely contingent upon the validity of his employment visa, the court stated.

Justice Govindaraj said, “The employment visa regime is designed to protect the domestic labour market. A declaration that no local talent is available is a jurisdictional fact for the grant of the visa. If this declaration is false, the visa is void ab initio [void from the beginning].”

Further, the court said, “When a privilege is obtained by fraud, the beneficiary cannot claim a violation of natural justice when privilege is withdrawn. Natural justice is not a rigid formula, If undisputed facts (here, the employer’s admission) point to only one conclusion, the issuance of a notice would be a “useless formality” theory.”

Accordingly, it held, “The hearing afforded to the employer was sufficient compliance with fairness, given the nature of the fraud.”

Leave India Notice not indirect way of cancelling visa

The bench in its order noted that the Leave India Notice was not an indirect cancellation of the visa. Referring to Section 3(2)(c) of the Foreigners Act, 1946, the bench said, “The visa does not create an indefeasible right to remain immune from that power. Articles 14 and 21 are not violated, and Article 19 is inapplicable.”

Section 3(2)(c) of the Foreigners Act authorises the central government to make orders directing that a foreigner “shall not remain in India”.

The bench then held, “In the present case, the FRRO does not purport to cancel the visa. It exercises a distinct statutory power of expulsion under Section 3(2)(c). The incidental consequence that a visa becomes practically ineffective does not transform a statutory expulsion into a colourable cancellation.”

Further, the court clarified in the order that an issuance of a Leave India Notice during the subsistence of a visa does not amount to an impermissible indirect cancellation. It is a lawful, independent exercise, which overrides the permission granted by the visa.

Accordingly, the court in its order held, “The impugned Leave India Notice does not suffer from arbitrariness or non-application of mind. It is founded upon documentary material, processed through administrative hierarchy, and directed towards preserving the integrity of the immigration framework.”

No ‘continuing stigma’

Refusing to accept the argument of the petitioner of having suffered professionally due to the notice, the court took into account the central government’s submission that the authorities had cleared the petitioner for re-entry into India on fresh visa categories. “This conduct negates the assertion of continuing stigma within the Indian immigration framework,” the court said.

Further, the bench in its order said, “The mere possibility that the petitioner may be required to disclose a prior Leave India Notice in a foreign visa application does not, in itself, create a subsisting legal injury within the jurisdiction of this court.”

The court also said, “Petitioner may not have been the author of the misrepresentation but was the beneficiary of representation.”

Emphasising that Immigration law, particularly in the context of sponsored visas, operates on the principle that the beneficiary’s status is inseparable from the sponsor’s compliance with statutory conditions, the bench dismissed the petition. “When the foundational declaration collapses, the derivative benefit cannot survive in isolation. To permit the petitioner to retain the advantage of a visa secured upon a materially defective sponsorship would undermine the integrity of the visa regime and dilute regulatory discipline,” the order said.

Justice Govindaraj said, “The law does not countenance retention of benefits flowing from misrepresentation, irrespective of whether the beneficiary personally orchestrated the falsehood. The issue is not moral blameworthiness but regulatory validity.”