Bombay HC orders immediate release of Yemeni national ‘detained in police station’ for overstaying in India

The court also stressed on the need for Standard Operating Procedures (SOPs) to handle cases of overstaying under the Foreigners Act and also questioned the lack of proper detention facilities in the city for such purposes. It also raised a question on how the man was detained without a formal order and who would have been held responsible in case anything untoward happened to him during the detention period.

A vacation bench of Justices Gauri V Godse and Somasekhar Sundaresan passed an order while hearing an application by one Mohammed Qassim Mohammed Al Shibah, a former employee of Yemen Airlines, who claimed that he was illegally detained in the Byculla police station premises. He said in December 2023, the high court had granted relief to another person in a similar case.

The applicant said the petitioners, including him, are refugees from Yemen registered under the United Nations High Commissioner for Refugees (UNHCR), whose visas expired in September 2015. Deportation orders were issued against six members of his family that included three minors.

The plea claimed that Al Shibah travelled to India between 2002 and 2015 and when the civil war broke out in Yemen, he and his family had sought asylum in India.

The applicant, through advocate Weseley Menezes, said since he was illegally detained earlier this month on May 16, he approached the high court with an interim application in a petition filed by the family that challenged various orders passed against them under the Foreigners Act, 1946.

The application seeking interim release contended that the respondent authorities would not be entitled to detain him in a police station as there are no other allegations against him except for ‘overstay’ in India.

Menezes claimed that his client was not a threat to public order and that the family, which had been granted refugee status until August 2027, was in the process to resettle in Canada and the same required another 12 months in India.

However, advocate Purnima H Kantharia, representing the Foreigners Regional Registration Office (FRRO), Mumbai, Additional Commissioner of Police, Special Branch- FRRO along with Union Home and External Affairs ministries, opposed the plea. She referred to Section 3 (2) (e) of the Foreigners Act and Foreigners Order, 1948, and said that the same provides the central government the powers to make orders regarding foreigners.

The bench noted that the applicant had entered India on a diplomatic passport with valid permission and was working in India and there were no criminal antecedents against him.

“Prima facie, we do not find that the provision of the Foreigners Act would be of any help to detain him in a police station,” the HC noted.

It added that the Foreigners Order provides powers to impose restrictions on movement related to place of residence, therefore, there was no supporting provision to detain him in the police station.

“We do not find any reason why he should continue to remain in Byculla police station,” the bench remarked.

It directed the applicant present in the court to be immediately released from the custody of respondents and that he shall not leave Greater Mumbai without seeking the court’s permission.

The bench said there was no reason that the police or FRRO could seize the applicant’s passport without following any procedure and asked Kantharia to hand over his original diplomatic passport to his lawyer.

The HC sought affidavits in reply by respondent authorities to the main petition and the interim application within two weeks, followed by petitioner’s rejoinder, and posted further hearing to June 16.