Kerala High Court: In a recent case where respondent authorities illegally seized the passport of the dependants (wife and children) of victim of human trafficking in USA and denied them to travel to America, a bench of A.V.R. Pillai J, held that the denial of the same is not only violation of the fundamental rights of the petitioners but also detrimental to the very concept of right, duties and obligations in matrimonial living of spouses.
The counsel for the petitioner M.P. Ramnath contended that when the petitioners are having due visas granted by the Government of USA and when there is nothing illegal about the petitioners duly traveling to USA to join their husband /father (victim of human trafficking in USA), it is absolutely illegal and baseless to restrain the petitioners to travel to USA. The counsel for the respondent N. Nagaresh contended that if the petitioners are permitted to go abroad, it would be against the provisions of the Victims of Trafficking and Violence Protection Act, 2000 passed by USA .
The Court observed that the Government of USA has granted proper visa to the petitioners to join their husband/father, and that the petitioners are not involved in any act prejudicial to the interest of the nation and are not the violators of the laws/ norms/ sovereignty and integrity of the country. The Court noted that United States Citizenship and Immigration Services (USCIS) approves eligibility for grant of T-visa to a victim of severe form of trafficking and dependents only after detailed procedures, verification, adjudication and evaluation of independent evidence.
The Court found that in the instant case there is no violation of the provisions of Passport Act, 1967, and accordingly held that restraint of petitioners holding a valid T2 and T3 visa from traveling abroad to join husband/father who is duly employed therein is not only violation of the fundamental right of the petitioners but also detrimental to psychological growth and development of the spouse and children. The Court directed the respondents to permit and enable the petitioners to travel to USA.
A trafficking visa (T-visa) is a type of visa allowing certain victims of human trafficking and immediate family members to remain and work temporarily in the IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
WEDNESDAY, THE 4TH DAY OF MARCH 2015
WP(C).No. 33046 of 2014 (E)
PETITIONERS:
MARY REDI KOTTUNKAL JOY,
RESPONDENTS:
THE ASSISTANT DIRECTOR/PORT REGISTRATION OFFICER (PRO)
BUREAU OF IMMIGRATION, GOVERNMENT OF INDIA,
The petitioners, who are granted valid visa to travel
and join the first petitioner's husband (father of the
petitioners 2 and 3) in United States of America where he
is employed, has approached this Court seeking the
following reliefs:
a) issue a writ in the nature of
mandamus or such other writs or orders
directing the respondents forthwith to
release the passports of the petitioners to
them.
b) issue a writ in the nature of
mandamus or such other writs or orders
directing the respondents to permit and
enable the petitioners to travel to the
United States of America upon the visas
duly stamped and issued by the
government authorities of the United States
of America to the petitioners as per Exts.P8,
P9 and P10.
c) direct the respondents to pay to the
petitioners the entire ticket charges for
them to travel to USA, as due
compensation and damages.
WPC No.33046/2014 2
d) award the cost of this writ petition.
2. The petitioners allege that when they went to
board the flight on 22.11.2014 at the Cochin International
Airport at Nedumbassery, the first respondent restrained
them illegally and did not clear them to travel and also
illegally seized their passports taking the stand that he
would not permit persons who have T2 and T3 visas
granted by the American Government to travel to
America. The petitioners were issued with the letter of
seizure of their passports. It is with this background, the
petitioners have come up before this Court.
3. This Court, by interim order dated 19th December
2014 directed the third respondent to release the passport
to the petitioners within a period of two weeks.
Accordingly, the passports were released. Therefore, the
only surviving question is whether the petitioners be
permitted to go abroad to join the first petitioner's
husband (father of petitioners 2 and 3) who is now in
United States of America.
WPC No.33046/2014 3
4. In the counter affidavit filed by the 4th respondent,
it was contended as follows:
A trafficking visa is a type of visa allowing certain
victims of human trafficking and immediate family
members to remain and work temporarily in the United
States, if they agree to assist law enforcement in
testifying against the perpetrators, it is submitted.
The United States Government estimates that each
year up to 50,000 people are trafficked into the United
States against their will, mostly women and children who
are brought as sex slaves. As a response, it enacted the
Victims of Trafficking and Violence Protection Act of 2000,
which among other things, allows such people to allow for
3 year temporary visas that lead to permanent resident
status.
It is contended by the respondents that a proposal to
treat the holder of Indian Passport whosoever has been
given the Trafficking visa on his/her passport issued by the
US Government as a violator of the Passports Act, 1967
was considered during an Inter-ministerial meeting on
WPC No.33046/2014 4
trafficking visas held on 10.2.2014. In the meeting it was
recommended to examine the feasibility of putting in
place a policy-frame work for placing 'T' visa holders in the
'Prior Approval Category for all Indian Consular services.
It was further recommended to examine from a legal
perspective the possibility of stopping 'T' visa holders with
valid passports from travelling US by suspending their
passports and handing over the same to CBI for
investigations followed by subsequent impounding/
revocation of the passports by Ministry of External Affairs.
On the basis of above mentioned recommendations and
the concurrence of L&T Division of the Ministry, with the
approval of the competent authority the following
decisions were taken:
(i) All the Missions/Posts abroad were instructed
to place the Indian Passport holders holding
United States T1, T2, T3, T4 and T5 visas in the
prior Approval Category for availing all Indian
consular services until further notice from the
Ministry.
(ii) the Bureau of Immigration, Ministry of Home
Affairs can stop Indian Passport holders from
leaving the country, if they hold Trafficking Visa
on their passports and the passports seized in this
regard may be sent to the Ministry (in case the
passport has been issued by the Missions/Posts
WPC No.33046/2014 5
abroad) or to the concerned Passport Office (from
where the passport has been issued for further
course of action.
A true copy of the approval order in this regard is
produced as Annexure R4(a).
It is contended by the respondents that after the
implementation of this policy by which all the
Missions/Posts abroad were instructed to place the Indian
Passport holders holding United States T1, T2, T3, T4 and
T5 visa holders in the prior approval category for availing
of all indian consular services, until further notice from the
Ministry. A number of cases for grant of passport facilities
to Indians who were residing in the United States and
have been granted 'T' visa by that Government were
referred by CGI, Houston to the Ministry for consideration.
All the above cases were considered in view of the specific
guidelines/instructions of the Ministry mentioned above
and the Mission was requested to resort to the following
course of action:-
(i) To impound/revoke the passports under
Section 10(3) (c) of the Passports Act, 1967 by
following the due procedure as stipulates in the
Passport Manual, 2010. However, they may be
WPC No.33046/2014 6
given an opportunity to appeal before the
appellate authority under Section 11 of the
Passports Act, 1967.
(ii) They may be given an option to return to
India for which Emergency certificate may be
issued to them, in case they wish to do so.
(iii) On their return to India, their names will be
placed in the Prior Approval Category (PAC) up
to a period of three years.
5. Arguments have been heard.
6. The learned counsel for the petitioners would
argue that the prevention of the petitioners from boarding
the flight in spite of having valid visas, due passports and
due tickets and the seizure of their passports are grossly
illegal, unreasonable, inequitable, baseless and without
authority. The learned counsel would argue that when the
petitioners are having due visas granted by the
Government of the United States of America and when
there is nothing illegal about the petitioners duly
travelling to the USA to join their husband/father, it is
absolutely baseless and illegal to restrain the petitioners
from boarding their flight to USA.
WPC No.33046/2014 7
7. The first petitioner's husband Mr.Jeegan Joseph is
employed in the United States of America who went for
employment to USA under Type R;H2B class Visa. He
being a skilled worker, that Mr.Jeegan Joseph like many
others were given employment in USA through an agency
recruiting skilled labour in India (Devan Consultancy,
Mumbai); it is alleged. The job offer was that they would
in due course be able to get green card also in USA.
However, the conditions under which these contract
employees were made to work and confined to work were
not only quite inhuman but also against the basic law and
policies of USA and its State laws. Thus, the US
Government has enacted the Trafficking Victims
Protection Act whereby such victims like the first
petitioner's husband are protected and they are issued T1
visas and their spouses, children and their parents are
entitled to T2, T3 and T4 visas respectively. It is how the
petitioners obtained T2 and T3 visas to join Mr.Jeegan
Joseph. Admittedly, the petitioner's husband is a valid
resident and employee in USA, as evident from Ext.P1
WPC No.33046/2014 8
which is the true scanned copy of the H2B class visa
stamped by the United States of America in favour of
Jeegan Joseph. The petitioners have also produced Ext.P2
which is the true scanned copy of letter of approval of T1
class which is valid from 4.1.2012 to 3.1.2016 issued by
the Department of Home Land Security, United States of
America Citizenship and Immigration services to
Mr.Jeegan Joseph. Ext.P3 is the true scanned copy of the
Employment Authorisation Card issued by USA to
Mr.Jeegan Joseph. It is evident from the document now
placed on board that Mr.Jeegan Joseph is validly stationed
in United States of America and the American Government
has issued due visas for petitioners' travel. Petitioners 2
and 3 have to join school in USA at the earliest and the
petitioners' visa would expire by 15.3.2015.
8. The main contention of the respondent is that a
Trafficking visa is a type of visa allowing certain victims of
human trafficking and immediate family members to
remain and work temporarily in the United States, if they
agree to assist law enforcement in testifying against the
WPC No.33046/2014 9
perpetrators. It was strenuously argued that if the
petitioners are permitted to go abroad and to join
Mr.Jeegan, the same would be against the provisions of
the Victims of Trafficking and Violence Protection Act,
2000 passed by the 160th Congress of the United States of
America at its second session. The learned counsel for
the petitioners made available to me a copy of the said
statute which he obtained from the website. The said Act
is organized into three divisions. viz. Division A, B and C.
Division A deals with victims of Trafficking.
9. Section 102 of Division A of the Act deals with the
purposes and findings. As per S.102(a), the purposes of A-
division are to combat trafficking in persons, a
contemporary manifestation of slavery whose victims are
predominantly women and children, to ensure just and
effective punishment of traffickers and to protect their
victims.
10. S.103(8) deals with severe forms of trafficking in
persons. It reads -
The term 'severe forms of trafficking in
persons' means (A) sex trafficking in which a
WPC No.33046/2014 10
commercial sex act is induced by force, fraud, or
coercion or in which the person induced to
perform such act has not attained 18 years of
age; or
(B) the recruitment, harboring, transportation,
provision, or obtaining of a person for labor or
services, through the use of force, fraud, or
coercion for the purpose of subjection to
involuntary servitude, peonage, debt bondage,
or slavery.
11. Sub Sections 19 to 24 of Section 102 reads as
follows:
(19) Victims of severe forms of trafficking
should not be inappropriately incarcerated,
fined, or otherwise penalized solely for unlawful
acts committed as a direct result of being
trafficked, such as using false documents,
entering the country without documentation, or
working without documentation.
(20) Because victims of trafficking are
frequently unfamiliar with the laws, cultures,
and languages of the countries into which they
have been trafficked, because they are often
subjected to coercion and intimidation including
physical detention and debt bondage, and
because they often fear retribution and forcible
removal to countries in which they will face
retribution or other hardship, these victims
often find it difficult or impossible to report the
crimes committed against them or to assist in
the investigation and prosecution of such
crimes.
(21) Trafficking of persons is an evil
requiring concerted and vigorous action by
countries of origin, transit or destination, and
by international organizations.
WPC No.33046/2014 11
(22) One of the founding documents of
the United States, the Declaration of
Independence, recognizes the inherent dignity
and worth of all people. It states that all men
are created equal and that they are endowed
by their Creator with certain unalienable rights.
The right to be free from slavery and
involuntary servitude is among those
unalienable rights. Acknowledging this fact, the
United States outlawed slavery and involuntary
servitude in 1865, recognizing them as evil
institutions that must be abolished. Current
practices of sexual slavery and trafficking of
women and children are similarly abhorrent to
the principles upon which the United States
was founded.
(23) The United States and the
international community agree that trafficking
in persons involves grave violations of human
rights and is a matter of pressing international
concern. The international community has
repeatedly condemned slavery and involuntary
servitude, violence against women, and other
elements of trafficking, through declarations,
treaties, and United Nations resolutions and
reports, including the Universal Declaration of
Human Rights; the 1956 Supplementary
Convention on the Abolition of Slavery, the
Slave Trade, and Institutions and Practices
Similar to Slavery; the 1948 American
Declaration on the Rights and Duties of Man;
the 1957 Abolition of Forced Labor Convention;
the International Covenant on Civil and Political
Rights; the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment
of Punishment; United Nations General
Assembly Resolutions 50/167, 51/66 and
52/98; the Final Report of the World Congress
against Sexual Exploitation of Children
(Stockholm, 1996); the Fourth World
Conference on Women (Beijing, 1995); and the
WPC No.33046/2014 12
1991 Moscow Document of the Organization
for Security and Cooperation in Europe.
(24) Trafficking in persons is a
transnational crime with national implications.
To deter international trafficking and bring its
perpetrators to justice, nations including the
United States must recognize that trafficking is
a serious offense. This is done by prescribing
appropriate punishment, giving priority to the
prosecution of trafficking offenses, and
protecting rather than punishing the victims of
such offenses. The United states must work
bilaterally and multilaterally to abolish the
trafficking industry by taking steps to promote
cooperation among countries linked together
by international trafficking routes. The United
States must also urge the international
community to take strong action in multilateral
fora to engage recalcitrant countries in serious
and sustained efforts to eliminate trafficking
and protect trafficking victims.
12. The statute clearly indicates that the purpose of
the enactment is to protect the victims of trafficking. The
Government of United States of America where Mr.Jeegan
is working, has granted proper visa to the petitioners to
join Mr.Jeegan.
13. As far as Indian citizens are concerned, the only
legislation which covers the field is the Passport Act, 1957.
14. Section 6 deals with the refusal to transfer
documents etc. which reads as under:
WPC No.33046/2014 13
6. Refusal of passports, travel documents etc. -
(1) Subject to the other provisions of this Act, the
passport authority shall refuse to make an endorsement
for vising any country under clause (b) or clause (c) of
sub section (2) of section 5 on any one or more of the
following grounds, and on no other ground, namely:-
(a) that the applicant may, or is likely to,
engage in such country in activities prejudicial to the
sovereignty and integrity of India:
(b) that the presence of the applicant in such
country may, or is likely to, be detrimental to the
security of India;
(c) that the presence of the applicant in such
country may, or is likely to, prejudice the friendly
relations of India with that or any other country;
(d) that in the opinion of the Central
Government the presence of the applicant in such
country is not the public interest.
(2) Subject to the other provisions of this Act, the passport
authority shall refuse to issue a passport or travel document
for visiting any foreign country under clause (c) of sub section
(2) of section 5 on any one or more of the following grounds,
and on no other ground, namely:-
(a) that the applicant is not a citizen of India;
(b) that the applicant may, or is likely to engage
outside India in activities prejudicial to the sovereignty
and integrity of India;
(c) that the departure of the applicant from
India may, or is likely to, be detrimental to the security
of India;
(d) that the presence of the applicant outside
India may, or is likely to, prejudice the friendly relations
of India with any foreign country;
(e) that the applicant has, at any time during
the period of five years immediately preceding the date
WPC No.33046/2014 14
of his application, been convicted by a court in India for
any offence involving moral turpitude and sentenced in
respect thereof to imprisonment for not less than two
years;
(f) that proceedings in respect of an offence
alleged to have been committed by the applicant are
pending before a criminal court in India;
(g) that a warrant or summons for the
appearance, or a warrant for the arrest, of the applicant
has been issued by a court under any law for the time
being in force or that an order prohibiting the departure
from India of the applicant has been made by any such
court;
(h) that the applicant has been repatriated and
has not reimbursed the expenditure incurred in
connection with such repatriation;
(i) that in the opinion of the Central
Government, the issue of a passport or travel document
to the applicant will not be in the public interest.
15. Section 10 deals with variation, impounding and
revocation of passports and travel documents.
It reads-
(1) The passport authority may, having
regard to the provisions of sub section (1) of section
6 or any notification under section 19, vary or
cancel the endorsements on a passport or travel
document or may, with the previous approval of the
Central Government, vary or cancel the conditions
(other than the prescribed conditions) subject to
which a passport or travel document has been
issued and may, for that purpose, require the holder
of a passport or a travel document, by notice in
writing, to deliver up the passport or travel
document to it within such time as may be specified
in the notice and the holder shall comply with such
notice.
WPC No.33046/2014 15
(2) The passport authority may, on the application of
the holder of a passport or a travel document, and with the
previous approval of the Central Government also vary or
cancel the conditions (other than the prescribed conditions)
of the passport or travel document.
(3) The passport authority may impound or cause to
be impounded or revoke a passport or travel document,-
(a) if the passport authority is satisfied that the
holder of the passport or travel document is in wrongful
possession thereof;
(b) If the passport or travel document was obtained
by the suppression of material information or on the basis of
wrong information provided by the holder of the passport or
travel document or any other person on his behalf;
Provided that if the holder of such passport obtains
another passport, the passport authority shall also impound or
cause to be impounded or revoke such other passport.
(c) if the passport authority deems it necessary so to
do in the interests of the sovereignty and integrity of India,
the security of India, friendly relations of India with any
foreign country, or in the interests of the general public;
(d) if the holder of the passport or travel document
has, at any time after the issue of the passport or travel
document, been convicted by a court in India for any
offence involving moral turpitude and sentenced in respect
thereof to imprisonment for not less than two years;
(e) if proceedings in respect of an offence alleged
to have been committed by the holder of the passport or
travel document are pending before a criminal court in
India;
(f) if any of the conditions of the passport or
travel document has been contravened;
(g) if the holder of the passport or travel
WPC No.33046/2014 16
document has failed to comply with a notice under sub
section (1) requiring him to deliver up the same;
(h) if it is brought to the notice of the passport
authority that a warrant or summons for the appearance,
or a warrant for the arrest, of the holder of the passport
or travel document has been issued by a court under any
law for the time being in force or if an order prohibiting
the departure from India of the holder of the passport or
other travel document has been made by any such court
and the passport authority is satisfied that a warrant or
summons has been so issued or an order has been so
made.
(4) The passport authority may also revoke a
passport or travel document on the application of the
holder thereof.
(5) Where the passport authority makes an order
varying or cancelling the endorsements on, or varying the
conditions of, a passport or travel document under sub
section (1) or an order impounding or revoking a passport
or travel document under sub section (3), it shall record
in writing a brief statement of the reasons for making
such order and furnish to the holder of the passport or
travel document on demand a copy of the same unless in
any case the passport authority is of the opinion that it
will not be in the interests of the sovereignty and
integrity of India, the security of India, friendly relations
of India with any foreign country or in the interests of the
general public to furnish such a copy.
(6) The authority to whom the passport authority
is subordinate may, by order in writing, impound or cause
to be impounded or revoke a passport or travel document
on any ground on which it may be impounded or revoked
by the passport authority and the foregoing provisions of
this section shall, as far as may be, apply in relation to
the impounding or revocation of a passport or travel
document by such authority.
(7) A court convicting the holder of a passport or
travel document of any offence under this Act or the rules
made thereunder may also revoke the passport or travel
WPC No.33046/2014 17
document;
Provided that if the conviction is set aside on appeal or
otherwise the revocation shall become void.
(8) An order of revocation under sub section (7)
may also be made by an appellate court or by the High
Court when exercising its powers of revision.
(9) On the revocation of a passport or travel
document under this section the holder thereof shall,
without delay, surrender the passport or travel document,
if the same has not already been impounded, to the
authority by whom it has been revoked or to such other
authority as may be specified in this behalf in the order of
revocation.
16. The respondents have no case that the
petitioners are offenders or persons involved in any act
prejudicial to the interest of the nation or violators of the
laws and norms or the sovereignty and integrity of our
country. No question of any alleged implementation of
any valid policy arises as rightly pointed out by the
learned counsel for the petitioners.
17. This Court vide order dated 9.1.2015 in
I.A.No.354/2015 directed the respondents to produce the
records required to be produced as detailed in the said
interlocutory application. But in spite of the repeated
directions and opportunities granted, the respondents
WPC No.33046/2014 18
have not produced those documents. This, according to
the learned counsel for the petitioners, is obviously
because such records are actually not existing and
factiously referred to in Ext.R1(d) or that if produced, it
would be patently clear that what the respondents are
trying to portray before this Court are absolute falsities
and illegalities. I see valid force in the said submission.
18. As rightly pointed out by the learned counsel for
the petitioners, it is after detailed procedures, verification,
adjudication and evaluation of independent evidence that
a victim of severe form of trafficking in persons that the
United states Citizenship and Immigration Services
(USCIS) which is a division of the homeland security,
approves eligibility for grant of T-visa. The United States
immigration laws providing for T-visa have clear
provisions and detailed procedures for verification of the
veracity of the testimony of the victim who applies for
T visa. Independent secondary evidence which is also
mandatory in the procedure also would be insisted. It is
common for the USCIS to reject T visa application for lack
WPC No.33046/2014 19
of credible secondary evidence. More over, if the victim
applying for T-visa is found to have fraudulently or wilfully
provided false information to USCIS as part of visa
application, he will face penalties for perjury and also
would be completely debarred from obtaining a future
visa also in any other category in/or to enter USA.
19. Now, the respondents would give thrust to the
argument that by the granting of visa, there would be
compulsion to testify. As rightly submitted by the learned
counsel for the petitioners, it is the law as well as the
process of any modern judicial and investigation system
that when a person is a victim of an offence or is a
witness to an offence or has necessary information as to
proof of planning, preparation and commissioning of any
offence, he would be required to testify in any prosecution
proceedings, on oath to testify truth and that is the right
in law abiding human being and that cannot be
prevented. The learned counsel for the petitioners would
submit that every year only about 600-800 persons were
granted T visa status and many applications are duly
WPC No.33046/2014 20
rejected as the scrutiny and evaluation is very strict and
stringent in the grant of such visa by the USCIS. T2, T3
and T4 visas are granted to the dependents of the
victims. Admittedly, the first petitioner is the wife and
she is duly granted T2 visa and petitioners 2 and 3 are the
children who are granted T2 and T3 visas respectively.
The visa stamping process which was duly completed
after the issuance of Exts.P5 to P7 as evidenced by
Exts.P8(2), P9(2) and P10(2). It is also crucial to note that
on no other grounds except the grounds stated in Section
6 of the Passport Act, 1967, travel documents could be
refused. The petitioners will not come under any of the
interdicts in Section 6 of the Passport Act, 1967.
20. The right to travel is a fundamental right
guaranteed and protected under Article 21 of the
Constitution of India. The right to life includes the right of
spouse and children to join, to be in the company and to
grow with the spouse and parents. The denial of the
same is not only violation of the fundamental rights and
natural rights of the petitioners but also detrimental to
WPC No.33046/2014 21
the very concept of matrimonial living as well as the
rights, duties and obligations in matrimonial living of
spouses. It is also detrimental to the psychological
growth and development of the spouse and children.
21. The learned counsel for the petitioners invited
my attention also to the provisions of the Universal
Declaration of Human Rights as well as International
Covenant on Civil and Political rights which protects the
individuals to travel and join the spouse and parents.
Admittedly, India is a signatory to both these documents.
More over, as per Article 10 of the Convention on the
Right of the Children, State must facilitate the
reunification in a positive human and expeditious manner
of the child and family. It is also specified that no adverse
consequences are to be imposed on the child and family
members.
22. On a consideration of the entire materials now
placed on record, this Court is of the definite view that the
respondents cannot in any manner restrain the petitioners
from holding derivative visas, T2 and T3 from travelling to
WPC No.33046/2014 22
USA to join husband/father who is duly employed therein.
In the result, this writ petition is allowed. The
respondents are directed to permit and enable the
petitioners to travel to USA upon the visas duly stamped
and issued by the government authorities of the United
States of America to the petitioners as per Exts.P8, P9 and
P10.
SD/-A.V.RAMAKRISHNA PILLAI
JUDGE
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