5 reasons why Gauhati High Court rules that foreign nationals awaiting expulsion can’t claim illegal detention

The high court rejected the plea, listing the following reasons:

• A foreign national awaiting expulsion is a “declared foreign national.” Such a person cannot claim that the custody is illegal on the grounds of non-service of arrest grounds under Article 22 of the Constitution, as foreigners tribunal declarations do not have “criminal consequences”.
• It is not a sufficient reason to prevent the central and state governments from taking appropriate action against the “declared foreign national” or from taking steps for her expulsion merely because Bibi did not violate any bail condition.
• The high court referred to studies and media reports, highlighting that the large-scale influx of illegal migrants from East Pakistan before March 1971 and Bangladesh thereafter has been altering the demography of the state.
• Considering the Supreme Court’s rulings in similar matters, the government has a duty to preserve the unity and integrity of the country.
• It is a wrong perception, created by a section of media reports, that “religious persecution” is occurring in the state. The court described this as “misinformation warfare” carried out against the country in general and Assam in particular.

Without commenting on other countries’ positions concerning illegal immigrants, the court noted that developed nations like the United States of America have also started to feel the “pinch of illegal immigrants,” and the steps taken by them are in the public domain.

The high court, in its January 6 order, held that there was no basis to suspect any government officer of taking any “irresponsible, illegal or reckless act” in sending the petitioner’s wife back to Bangladesh.

Background of the case

The petitioner’s wife was declared an illegal migrant in 2017, which he later challenged before the Gauhati High Court.

In 2021, the high court set aside the ex parte opinion of the Foreigners Tribunal, which had declared her an “illegal migrant”, and granted her 15 days to appear before the tribunal and file a written statement. However, Bibi did not appear, resulting in the revival of the ex parte opinion.

She was taken into custody as a declared “foreign national” awaiting expulsion in May 2025 and was later sent back to Bangladesh.