The Karnataka High Court has asked the Ministry of Home Affairs (MHA) to re-examine its Official Memorandum (OM) that authorises officials to allow overstaying foreign nationals to leave the country by collecting a penal fee as it is ‘contrary’ to the penal provisions of the Foreigners Act, 1946.
Justice A.V. Chandrashekara passed the order after analysing various provisions of the Foreigners Act, 1946, the Foreigners Order, 1948, and allied statutes while refusing bail to three Nigerians, who had not only been booked for alleged criminal activities in Bengaluru but were also prosecuted for staying beyond the visa period.
In response to the court’s direction to produce data on overstaying foreigners and criminal cases booked against them, the State government pointed out that the OM, issued on March 12, 2014, runs ‘counter’ to the statutory provisions of the Foreigners Act.
The High Court noticed that Section 14 of the Foreigners Act prescribes imprisonment for up to five years in addition to a fine on foreigners who remain in India for a period exceeding the period of visa.
However, the court found, the 2014 OM amounts to ‘legalising’ the period of overstay by authorising the officials to ‘blacklist’ such overstaying foreign nationals and allow them to leave India by collecting a penal fee, which is in the rage of $30 to $230 depending on the period of overstay.
“…if no legal action is taken as per the Foreigners Act or Foreigners Order, there would be lot of cases of overstay and they [overstaying foreign nationals] would be happy to pay the penal fee to the Foreigner Regional Registration Office and go back,” the court observed while agreeing with the State government’s contention that provisions of the Foreigners At will virtually become ‘otiose’ due to the 2014 OM.
Finding force in the contention of the State government that ‘if the 2014 Official Memorandum is followed, it would be as good as enabling foreign nationals to violate important legislations like Foreigners Act…,,” the court asked the Ministry of Home Affairs to re-think whether long period of overstay could be condoned by collecting a fine instead of booking such persons for violation of Section 14 of the Foreigners Act.
