India was included in the ‘safe’ list of countries in 2005, but one of the grounds on which UK asylum may be considered is poor prison conditions in which an applicant may be lodged if returned – a claim likely to be raised by fugitive businessman Nirav Modi.
Facing charges of serious financial misconduct in the Rs 11,400 crore Punjab National Bank fraud, Modi’s location abroad remains unknown but Indian sources say it is ‘highly likely’ that he is in the United Kingdom (not London), having arrived at a private airport before his Indian passport was revoked in February.
A court of the Central Bureau of Investigation in Mumbai on Monday reportedly took cognisance of the agency’s chargesheet in the bank fraud and issued non-bailable warrants against Modi, his brother Neeshal Modi, and Subhash Parab, an executive in Nirav Modi’s group of companies.
The arrest warrant is likely to set in motion the process of India seeking Modi’s arrest, if present in the UK, as part of a future extradition request. India has not yet made an extradition request, but any such request may become infructuous if Modi is granted asylum in the country.
Home Office sources say no application for asylum has yet been made by Modi, who has family in the UK, but an expert legal team is said to be working on submitting one. Modi has a jewellery store Nirav Modi in Mayfair, where business was as usual.
India is no longer considered a place from where people flee, and its inclusion in the list of ‘safe’ countries in 2005 for asylum purposes means that applications that are rejected and certified as ‘clearly unfounded’ cannot be appealed against while the applicant is in the UK.
The four major grounds for considering asylum applications from Indian citizens are sexual orientation and gender identity, prison conditions, women fearing gender-based harm/violence, and religious minority groups.
Applicants seeking asylum raise the fear of being imprisoned on return to India and that prison conditions are so poor they amount to torture or inhuman treatment or punishment.
Poor prison conditions have been raised in several extradition cases, including those of businessman Vijay Mallya and suspected cricket bookie Sanjeev Chawla.
The Home Office reportedly has a large backlog of asylum applications, with decisions regarding applications taking years. While the application is under consideration, the applicant can usually remain in the UK.
An asylum application on the ground of poor prison conditions is assessed against the UK’s obligation to uphold Article 3 of the European Convention of Human Rights.
‘Prison conditions which are systematically inhuman and life-threatening are always contrary to Article 3 ECHR. However, even if those conditions are not severe enough to meet that threshold, Article 3 may be breached if, because of a person’s individual specific circumstances, detention would amount to inhuman or degrading treatment,’ Home Office guidance says.
‘If the prison sentence or the prison regime, irrespective of its severity, is discriminatory or being disproportionately applied for reasons of race, religion, nationality, membership of a particular social group or political opinion, the person may qualify as a refugee,’ it adds.
According to latest figures from the Office for National Statistics, 5,500 Indian citizens applied for asylum in the UK over the last five years. Most of them were made after they arrived at UK ports, indicating that they may have travelled on valid visas and applied for asylum later.