Holding In Designated Centres Only Way If Foreigner Cannot Be Expelled: Gauhati High Court Denies Bail To Declared Foreigner Who Illegally Re-Entered India

"In the event a declared foreign national cannot be expelled from the Country due to any reason whatsoever... detaining of such declared foreign national in the holding areas earmarked for the purpose is the only way." Gauhati High Court, in a significant ruling, held that a declared foreign national who was previously pushed back from the country but illegally re-entered Indian territory is not entitled to bail despite suffering prolonged detention.

A division bench comprising Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund held that the State possesses ample powers under the Foreigners Act, 1946 and the Immigration and Foreigner's Order, 2025 to confine illegal migrants in designated holding centres pending their expulsion.

The petitioner was declared a foreign national who entered Assam after the cut-off date of March 25, 1971 by Foreigners' Tribunal No. 1, Goalpara in 2009, an order that attained finality upon dismissal of his writ petition in 2010. Following his push-back to Bangladesh, the petitioner illegally re-entered India, was apprehended in November 2016, and was subsequently convicted under Section 6(a) of the Passport (Entry into India) Rules, 1950 and Section 14(c) of the Foreigners Act, 1946. He approached the High Court seeking bail, protection from deportation, and permission to apply for citizenship under the Citizenship (Amendment) Act, 2019, citing prolonged detention since 2016 and his right to family life.

The primary questions before the High Court were whether a declared foreign national who illegally re-entered India after expulsion is entitled to bail on grounds of prolonged detention, and whether the petitioner could claim relief or citizenship under Section 6A of the Citizenship Act, 1955 or the Citizenship (Amendment) Act, 2019.

No Entitlement To Bail Despite Prolonged Incarceration

The High Court observed that when a declared foreigner cannot be deported immediately, holding them in earmarked detention facilities is lawful and necessary. The bench emphasized that the petitioner was pushed back to Bangladesh on April 9, 2010, but sneaked back into India unlawfully before being apprehended in 2016.

"Under the erstwhile Foreigner's Act, 1946 the provision for such detention or confinement was provided under Section 4 of the Foreigner's Act, 1946 and similar provision is available in paragraph 12 of the Immigration and Foreigner's Order, 2025, which empowers the State to impose restrictions on movement for illegal migrants pending their expulsion."

State Possesses Unfettered Power To Expel Foreign Nationals

Relying on the Constitution Bench judgment of the Supreme Court in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, the bench highlighted that foreigners do not enjoy fundamental freedoms under Article 19 of the Constitution of India, such as the right to move freely or reside in any part of the country.

The court noted that the Foreigners Act confers an unrestricted right upon the Union Government to expel foreigners. The bench underscored that the Central Government enjoys absolute and unfettered discretion to make an expulsion order, which remains unfettered by constitutional limitations.

Assam Accord Mandates Expulsion Of Re-Entered Foreign Nationals

The bench made extensive reference to the landmark Supreme Court ruling in Sarbananda Sonowal v. Union of India, which took cognizance of large-scale demographic alteration and illegal influx into Assam. The court pointed out that Clause 5.7 of the historic Memorandum of Settlement (Assam Accord) expressly mandates that all persons who were expelled earlier, but have since re-entered illegally into Assam, shall be expelled.

Consequently, having detected the petitioner as a declared foreign national who repeatedly intruded into Indian borders after being pushed back, the State is legally mandated to expel him rather than release him into society.

Distinction Between Deportation And Expulsion

Reiterating its previous decision in Abdul Rejjak v. Union of India, the division bench clarified the fundamental doctrinal distinction between deportation and expulsion under immigration law.

The court pointed out that while a person who enters India lawfully on valid documents but overstays the permitted period is deported, a foreigner whose very entry into the country is surreptitious and illegal must be expelled.

Citizenship Benefits Barred Once Declared Foreigner Status Attains Finality

The High Court rejected the petitioner's reliance on the Citizenship (Amendment) Act, 2019 and Section 6A of the Citizenship Act, 1955, referring to the Supreme Court Constitution Bench decision in In Re: Section 6A of the Citizenship Act, 1955.

The court noted that immigrants detected as foreigners who failed to register within the stipulated time frame are ineligible for citizenship benefits. Since the tribunal's opinion declaring the petitioner an illegal migrant attained finality in 2010, no judicial directions could be issued to facilitate his citizenship registration.

Refugee Certificate Cannot Be Raised Belatedly

Addressing the petitioner's belated reliance on a 1952 Refugee Registration Certificate, the bench observed that the document was never placed before the Foreigners Tribunal or the trial court during his conviction. While clarifying that the dismissal would not prejudice any lawful remedy the petitioner may independently pursue on that certificate, the court found no grounds to interfere with his custody.

The High Court dismissed the writ petition at the motion stage, affirming the State's power to keep the petitioner confined in the Matia Holding Centre in Goalpara pending his expulsion from India. The ruling reinforces that foreigners who repeatedly breach Indian borders cannot invoke prolonged detention to claim bail or circumvent mandatory expulsion proceedings.

Date of Decision: 03 August 2026