• On the ‘grey’ area of SL’s refugee law framework 

Sri Lanka, a nation that has endured one of the world’s most protracted humanitarian crises (the three-decade internal conflict), now faces a quandary with the ‘Rohingya’ refugees who have sought protection in a country they might have believed would offer them safety. In a context where various parties, including government ministers, suggest that this issue involves human smuggling beyond the scope of refugee-related concerns, The Daily Morning examined the statutory legal framework and the international obligations in the country that govern such refugee-related matters.  

In the current context, as per the Office of the United Nations High Commissioner for Refugees (UNHCR), as of 31 January 2024, Sri Lanka hosts 311 registered refugees and 180 registered asylum-seekers. Among these individuals are 105 Rohingya refugees and numerous asylum-seekers from the Ahmadiyya community.  

Against this backdrop, addressing the domestic legal background of the relevant issues and the protection of refugees, attorney and lecturer at the Department of Public and International Law, Faculty of Law, University of Colombo, Kusal Kavinda Amarasinghe stated that Sri Lanka lacks definitive laws to deal with refugees or asylum-seekers, describing this as a ‘grey area’ in the country’s legal domain. Highlighting that Sri Lanka is not a signatory to any international convention regarding the protection of refugees and asylum-seekers, Amarasinghe noted that the country also lacks specific enabling legislation to address such crises. “There is only one Convention concerning the protection of refugees – the 1951 Refugee Convention. We are not a State party to that Convention. As a country that follows a dualist legal system, such international conventions must be enacted through domestic legislation. Therefore, this issue remains a grey area. We have no enabling legislation,” he said. However, he emphasised that, as a Member of the United Nations, Sri Lanka has obligations under customary international law to act in a humanitarian manner in such cases. Amarasinghe explained that, in the absence of specific laws addressing these issues, the gap is bridged by other existing Legislation, such as the Immigrants and Emigrants Act. “This Rohingya issue is a humanitarian crisis. Any civilised nation cannot deport or immediately return them. In such cases, we should detain them with the advice and cooperation of the UN agencies, especially the UNHCR. This issue falls under the domestic legal framework, as refugees or asylum-seekers must be presented before a Magistrate. They don’t arrive as legal migrants and have no proper documentation. In such instances, the law enforcement authorities act under the provisions of existing domestic legislation, such as the Immigrants and Emigrants Act. A detention order must be obtained from the Magistrate’s Court to detain these refugees or asylum-seekers,” he explained. When The Daily Morning inquired about the Government’s alleged decision to deport the Rohingya refugees, Amarasinghe stated that such decisions lie within the purview of the Government and the relevant public agencies, and that the Judiciary has no authority to determine them. He emphasised that such decisions must follow comprehensive discussions with international agencies and stakeholders, as Sri Lanka is bound by various international conventions and agreements to protect the rights of all individuals, even in the absence of a specific legal framework for refugees or undocumented migrants. “In such cases, international customary laws play a significant role. It is not solely about statutory laws; there are also customary rules and principles. In this situation, these asylum-seekers cannot be deported back to their home country as they have sought protection here. According to these customary rules, we should either facilitate them or detain them until the relevant legal proceedings are completed. Disregarding international customary laws is not an option,” he added. Amarasinghe further stressed the need for the Government to initiate the legislative process to establish a specific legal framework. “The Government should either enact new laws or become a Party to the current Convention to address the existing gap in our legal system. We don’t even have a legal framework to address the issues faced by internally-displaced persons. This was evident during the ethnic conflict. Without such a framework, these issues will continue to arise. We must develop our own legal framework to address the challenges faced by refugees and asylum-seekers,” he said.  

In Sri Lanka, as there is no specific legal framework addressing refugees or asylum-seekers, these groups are also governed under the Immigrants and Emigrants Act (Chapter 245), like locals. However, Section 31 of the Act explicitly outlines provisions regarding the treatment of non-local persons. This Section details the subject Minister’s authority to deport individuals who are not Sri Lankan citizens. Additionally, Section 46 (offences to be cognisable and triable by a Magistrate) and Section 48 (detention of persons suspected or charged with committing an offence) are applicable to refugees and asylum-seekers, who are still considered ‘illegal migrants’ in the absence of laws recognising them as refugees.  

Against this backdrop, the Human Rights Commission of Sri Lanka (HRCSL) sought permission to meet the refugees currently detained by the Air Force, addressing a letter to the President. As the country’s foremost body responsible for safeguarding the human rights of all individuals within Sri Lankan territory, The Daily Morning reached out to the HRCSL to inquire about its intervention in the ongoing Rohingya refugee issue.  

Speaking to The Daily Morning on behalf of the Commission, HRCSL Commissioner, attorney Dr. Gehan Goonetilleke revealed that the Government did not formally respond to the HRCSL’s letter. However, on 31 December 2024, the HRCSL summoned the relevant officials, including officials from the Department of Immigration and Emigration and the Air Force, and explained that access to the detainees must be granted to the HRCSL in terms of its statutory mandate. “Access was eventually provided, and a team from the HRCSL, headed by the Regional Coordinator, Jaffna, visited the asylum-seekers held at the Air Force Compound, Keppapilavu, Mullaithivu, on 9 January of this year (2025),” he added. He also stated that the HRCSL has a mandate under the HRCSL Act, No. 21 of 1996, to visit persons (not just citizens but any “persons”) kept in custody to assess the conditions of detention and the welfare of the persons. He said that accordingly, it visited the asylum-seekers on 9 January to assess their conditions of detention and is in the process of preparing its report. It was observed that there were 57 children in the camp. The report will be published soon. “We are in touch with the UN Resident Coordinator in Colombo and the Office of the High Commissioner for Human Rights. Also, the HRCSL has informed the President that Sri Lanka has special obligations under the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007, to ensure that the best interests of the children are protected, regardless of the citizenship of the children, where the children are within Sri Lanka’s jurisdiction. Therefore, the Government must take immediate action to ensure the safety and protection of the 57 children held in the camp,” he added. Quoting a statement issued by the HRCSL on the World Refugee Day, Dr. Goonetilleke stated that the HRCSL has informed the relevant authorities regarding the country’s obligations and duty to protect the wellbeing of these people despite their nationality or race. As quoted from the aforementioned statement: “The HRCSL recalls the principle of non-refoulement, which remains an essential norm under international human rights, humanitarian, and customary law, and which prohibits States from transferring or removing individuals from their jurisdiction when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return. Sri Lanka is a Party to several international human rights treaties that legally bind it to abide by the principle of non-refoulement and to refrain from repatriating those who are at risk of persecution, torture, ill-treatment, or other serious human rights violations upon their return. The HRCSL also recalls that Sri Lanka’s domestic law recognises this principle. For example, Section 18(1) of the International Convention for the Protection of All Persons from Enforced Disappearance Act, No. 5 of 2018, provides: ‘No person shall be expelled, returned, surrendered, or extradited to another State where there are substantial grounds for believing that such person would be in danger of being subjected to enforced disappearance’.” In this overarching context, the HRCSL calls upon the Government, with the support of local and international institutions with the relevant mandates and expertise, to formulate a comprehensive policy to ensure the protection and promotion of the human rights of all refugees and asylum-seekers in Sri Lanka. The HRCSL is prepared to actively participate in the preparation and implementation of such a policy. It also calls upon the Government to consider accession to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol in recognition of its commitment to the protection and promotion of the human rights of all persons, regardless of national origin.  

When examining international refugee laws, the principle of non-refoulement, outlined in Article 33 of the 1951 International Refugee Convention, stands out as a fundamental element governing refugee-related law. This principle prohibits States from returning or expelling refugees to territories where their life or freedom would be at risk. The right not to be returned, or non-refoulement, is recognised as part of the customary norms of international law, binding on States regardless of their ratification of specific treaties.  

Numerous reports circulated in electronic and social media have alleged the suspension of UNHCR operations in Sri Lanka, raising further concerns about refugee protection. In a statement, the HRCSL noted that it has been informed of the scheduled closure of UNHCR operations in Sri Lanka in 2024. In this context, the UNHCR has announced that 176 asylum-seekers registered with its Sri Lanka office will not be eligible for third-country resettlement and are likely to remain in Sri Lanka beyond December 2024. Furthermore, the UNHCR clarified that, effective as of 31 December 2023, and following an 11-month advance notice period, it has ceased providing monthly subsistence allowances and education assistance to refugees and asylum-seekers.  

When examining these observations and findings, it is evident that Sri Lanka still lacks specific laws to recognise and regulate refugees and asylum-seekers. The absence of such laws creates significant challenges, both from humanitarian and national security perspectives. Furthermore, some human rights activists have expressed concerns that the country’s reluctance to acknowledge the status of refugees could harm its international reputation, especially at a time when Sri Lanka is facing scrutiny over human rights issues globally.  

Due to the lack of a dedicated legal framework, these individuals are governed by existing domestic laws, such as the Immigrants and Emigrants Act. Consequently, the authorities often categorise asylum-seekers as illegal migrants, which raises serious humanitarian concerns. To address these gaps, as highlighted by the HRCSL, international agencies, and legal scholars, lawmakers must take steps to adopt a specific legal framework or ratify the relevant international conventions to bring clarity to this ‘grey area.’