Implications of the Immigration Act 2025: New beginning or false dawn?

On October 19, 1954, German boat Kandelfels arrived at the bustling port of Calcutta, tasked with repatriating a German subject named Hans Muller. The German government had been working the diplomatic channels for his extradition in connection with his fraudulent dealings in Egypt and Lebanon. As law would have it, Kandelfels left the port without Muller.

A month ago, on September 18, 1954, Muller had been arrested by the Calcutta Police under the Preventive Detention Act, 1950, to be expelled from India. While West Germany was negotiating his extradition through diplomatic channels, Muller challenged his detention before the High Court of Calcutta, which dismissed his plea. Thereafter, Muller approached the Supreme Court on the same grounds under Article 32 of the Constitution. Owing to the pendency of Muller’s challenge, the expulsion orders were kept in abeyance.

A five-judge Bench of the Supreme Court in Hans Muller of Nurenburg v. Superintendent, Presidency, Jail, Calcutta and Ors (1955) recognised the unfettered and absolute discretion of the Central government to expel foreigners from India. The decision in Hans Muller thus became a precedent for the scope of State’s power to expel foreigners.

In 1985, Belgian priest Louis De Raedt, serving in Campion School, Bhopal, was surprised to receive a notice requiring him to leave the country. Unknown to him, a few miles away, an American couple was also staring at the same notice. The notices issued by the Government of Madhya Pradesh were a stern directive to leave India, a country they called home. 

Dejected at having to leave India, the couple challenged the decision of the Madhya Pradesh government. Subsequently, the Supreme Court upheld the notice issued and reiterated that in India, the government has an unrestricted right to expel a foreigner.

For close to two centuries, India was colonised by the British, the French, the Portuguese and the Danish.

After its independence in 1947, as a newly formed nation, India witnessed an influx of foreigners from neighbouring countries such as Tibet, Sri Lanka (Tamil refugees), Bangladesh, Myanmar etc.  

Faced with a need to protect its territory and sovereignty, the government exercised powers under the Foreigners Act, 1936 (later replaced by the Foreigners Act, 1946) to expel and deport foreigners. Section 3 of the Foreigners Act, 1946, empowered the Central government to prohibit, regulate or restrict the entry of foreigners into India.

The Foreigners Order, 1948 permitted the civil authority to refuse entry to a foreign national on certain grounds: if the foreigner was not in possession of a valid passport or visa; was a person of unsound mind or a mentally defective person; was suffering from a loathsome or infectious disease; or had been sentenced in a foreign country for an extradition offence; or if their entry was prohibited under an order issued by a competent authority or under specific orders of the Central government. 

In addition to the specified grounds, Rule 4(a) of the Foreigners Order, 1948 stipulated that a civil authority could also prohibit the entry of any foreigner into India in the interest of “public safety”.

Post-independence, numerous judgments reiterated the government’s unfettered power to expel a foreigner. Lately, courts in India have exercised the power of judicial review to safeguard foreigners against arbitrary expulsion.

Various courts have examined government decisions on grounds of due process and fairness and even struck down orders deporting or restraining foreigners possessing valid documents.

One of the challenges involved for a foreign national who is deported or refused entry is that the reasons for the expulsion or deportation is not made known.  It is only after the individual approaches the court that the individual obtains some level of clarity regarding the reasons for the expulsion or deportation.

Even in cases involving alleged visa violations, courts have intervened and provided foreigners an opportunity of being heard. Courts have entertained challenges to deportation or expulsion, especially when the action is found to be arbitrary and without material evidence. The courts in such cases examine whether the government’s decision to deport or expel a foreign national holding a valid visa is arbitrary in nature. 

Another challenge encountered is that the documents and the material leading to the decision of expelling the foreigner are rarely, if ever, made available to the foreign national. Even while dealing with such cases, the courts have exercised the power of calling for and examining the material to test the State action. 

The Delhi High Court in Brett Laffien vs. Union of India, while dealing with a case where a foreign national was refused entry despite possessing a valid visa, called for the relevant records and opined that the government had no material to justify its conclusion that the foreigner was employed in the country.

More recently, the Delhi High Court in John Robert Roughton III v. Union of India & Ors, while dealing with a case where a foreign national holding an Overseas Citizen of India (OCI) card was blacklisted and deported due to alleged involvement in missionary activity, found the blacklisting and deportation unlawful and held that the individual’s rights could not be curtailed arbitrarily. The Court directed the government to issue a show cause notice to the individual and pass a speaking order after affording him an opportunity of hearing.

A recent decision of the Calcutta High Court in Bhodu Sekh v. Union of India & Ors is another example. The Court set aside the order passed by the Centre to deport people to Bangladesh. The case pertained to individuals who had been detained by the Delhi Police and deported to Bangladesh under the orders of the Foreigners Regional Registration Office (FRRO) Delhi. The deportation was carried out without reference to the West Bengal authorities.

However, this tussle between the right of a sovereign state to deal with a foreign national and the limited right available to a foreigner challenging such state action is likely to get more complicated with the passing of the Immigration and Foreigners Act, 2025, which came into force with effect from September 1, 2025. 

The 2025 Immigration Act consolidates and repeals erstwhile Acts - namely the Passport (Entry into India) Act, 1920; the Registration of Foreigners Act, 1939; the Foreigners Act, 1946; and the Immigration (Carriers’ Liability) Act, 2000. It also specifies several grounds for expulsion in addition to those in the Foreigners Order, 1948. 

The Act stipulates that a foreigner, despite holding valid travel documents, could be refused entry into the country or be refused permission to stay, if they are a threat to national security. Other grounds include that the refusal of entry is necessary to safeguard the sovereignty and integrity of India, or to safeguard relations with a foreign state, or public health, or other grounds as the Central government may specify. 

The specification of additional grounds in this new Act is a step in the right direction as it offers some clarity regarding the reason for deportation. This change may, however, bring little solace unless the grounds cited by the government are communicated to the foreigner facing deportation or being refused entry.

One of the challenges with the new Immigration Act is the lack of clearly defined terms. What constitutes a “threat to national security” has not been defined. The explanation often given is that the materials cannot be disclosed due to security and confidentiality. As it stands, the materials and documents used to arrive at the conclusion that an individual is a “threat to national security” are rarely reviewed by courts, with exception of compelling malafide or arbitrariness. In such a situation, the lack of clearly defined terms when juxtaposed with the limited scope of judicial review will make any legal challenge more onerous.

It is also unclear whether the reason given under the 2025 Immigration Act by the Central government to deport or refuse entry to a foreigner would be subject to judicial scrutiny. Whether such an order is required to be a speaking order is also not clear in the Act.  Lastly, whether such an order passed under the 2025 Immigration Act would be made available to a foreign national remains to be seen.

The Division Bench of the Delhi High Court in Union of India v. Savitha Kumar (2019) held that the government need not provide any prior intimation regarding refusal of entry to a blacklisted foreigner prior to his arrival in the country.

The 2025 Immigration Act comes into play at a time when there has been greater scrutiny globally on the way governments are dealing with foreigners. The recent decision of the United States Supreme Court in Donald J Trump, President of the United States v. JGG et al - to vacate stay orders on presidential action to detain and expel certain Venezuelan nationals and deport them to a third country - highlights how courts are viewing the sovereign power to deport foreigners.

It remains to be seen whether the 2025 Immigration Act is likely to lead to an increase in judicial scrutiny of State action or whether the new legislation is likely to lead the courts to adopt a more restrained and hands-off approach in questioning the State’s action against foreign nationals.

Dhiraj Abraham Philip is an Advocate-on-Record at the Supreme Court of India and co-founder of F&D Legal Chamber.

Febin Mathew Varghese is an Advocate-on-Record at the Supreme Court of India.