By Bijaya Khadka
A People Without Recognition
In the quiet neighborhoods of Kapan, on the northern edge of Kathmandu, a few hundred Rohingya families live in makeshift shelters of bamboo and tin. They are survivors of Myanmar’s military campaign that forced more than a million Rohingyas from their homes. Yet in Nepal, they remain invisible—welcomed by no law, protected by no policy, and recorded by no state authority.
For these families, life is a contradiction. Nepal offers safety from the killing fields of Rakhine, but not recognition. Refugees rely on the UNHCR and small humanitarian organizations for food, shelter, and medical help. They live in clusters separated from local communities, their movement restricted, and their access to education and work severely limited. Their status is defined not by rights but by absence—the absence of law, of identity, and of certainty.
The Legal Silence
Nepal has no law that recognizes refugees. It has not acceded to the 1951 Refugee Convention or its 1967 Protocol. Instead, foreign nationals fall under the Immigration Act of 1992, which treats all undocumented persons as illegal entrants subject to penalties or deportation.
This absence of legislation leaves the fate of refugees to administrative discretion. The Ministry of Home Affairs and the Department of Immigration oversee entry, presence, and departure of foreigners, but they have no defined mandate for refugees. A 2005 letter from the Ministry of Foreign Affairs to the UNHCR even stated that any foreign national seeking refuge would be accountable under the Immigration Act and punishable for settling without government permission.
In 2007, the Ministry reiterated its position and asked UNHCR to suspend issuing refugee certificates. Since then, UNHCR has continued limited registration and assistance, but Nepal has not formally recognized any new group of refugees. As a result, even UNHCR-recognized Rohingyas are legally “illegal residents.”
The confusion extends to the state’s own officials. The Director General of Immigration once remarked, “Did the Rohingyas come by plane to be monitored by the department?” It was not sarcasm—it was institutional helplessness. The Department had no records, and the responsibility fell elsewhere.
Customary Obligations Ignored
Yet Nepal’s obligations under international law are not erased by its silence. The Universal Declaration of Human Rights—to which Nepal is a party—states in Article 14 that everyone has the right to seek and enjoy asylum from persecution. The principle of non-refoulement, a cornerstone of refugee protection, prohibits sending refugees back to places where their lives or freedoms are threatened.
This principle is binding as customary international law, even for countries not signatory to the Refugee Convention. It represents a moral and legal baseline: that no one should be forced back into danger.
Nepal’s deportation of Tibetans and other asylum seekers in past years stands as a warning. If Rohingyas were expelled en masse, it would constitute a violation of both international norms and the spirit of Nepal’s own Constitution, which upholds dignity, equality, and the right to life.
A Judiciary Without Power
The Supreme Court of Nepal once directed the government to formulate a refugee law. Yet two decades later, no such legislation exists. Refugee issues remain caught between ministries, with overlapping jurisdictions and no accountability. The absence of legal clarity has produced what one jurist called “a paradox of compassion without structure.”
Justice Kalyan Shrestha once observed that granting refugees the right to education and movement without making comprehensive laws is “logically inconsistent.” His words capture Nepal’s contradiction: moral sympathy coexists with legal vacuum.
Some legal scholars argue that provisions within existing acts—such as Articles 11 and 14 of the Immigration Act—allow the government to issue waivers for particular groups. In practice, those provisions have never been applied to refugees. The Rohingyas, like other unregistered foreigners, are viewed through the lens of illegality rather than protection.
Lives in Limbo
Field interviews conducted in Kapan show a fragile coexistence. Rohingya families report that they feel physically safe in Nepal. They appreciate that locals have not harassed them and that the community coexists peacefully. Yet this safety is shallow—it depends on silence.
Without legal identity, they cannot open bank accounts, own property, or travel freely. Children attend informal schools funded by aid groups but cannot sit for national exams. Some families have lived in Nepal for over a decade, yet remain legally invisible.
Community leaders admit their fear of visibility. They avoid outside visitors, refuse photography, and decline to share details about their camps. Their caution is a survival tactic. In the absence of protection, secrecy becomes defense.
Local authorities express frustration. The ward office of Budhanilkantha Municipality, where the largest camp lies, describes growing disputes with landlords who rent land to Rohingyas. Sanitation problems, rent conflicts, and neighborhood tensions are rising. Yet the local government cannot intervene or relocate the camps—it lacks jurisdiction and guidance from the federal level.
Security and Stigma
Over the years, sections of the police and media have raised concerns about “illegal migration” and potential “security risks.” Reports mention alcoholism, domestic disputes, and alleged criminal activities inside camps. But these claims often rely on anecdote, not evidence.
The greater risk lies elsewhere: that fear and rumor will erode the fragile tolerance that allows refugees to live peacefully. Without legal status, any isolated incident can be weaponized against the entire community. Nepal’s security concerns are real, but they cannot justify indefinite legal exclusion.
The Regional Context
Nepal’s refugee dilemma is shaped by its geography and politics. The country lies between India and China, both of which influence its policies. Since the 1990s, Nepal has aligned its asylum practices with India’s—accepting refugees on humanitarian grounds but without formal legal recognition.
This discretionary model allowed Nepal to host large numbers of Tibetan and Bhutanese refugees in the past. But in the Rohingya case, the same approach has turned into paralysis. Fearing financial liability and political backlash, Nepal neither regularizes nor removes the refugees. They remain in limbo, suspended between legality and survival.
Meanwhile, the UNHCR continues to document about 2,000 asylum seekers in Nepal, from more than a dozen countries—Nigeria, Somalia, Myanmar, Afghanistan, and others. Most live in urban slums, dependent on food aid and informal labor. The Rohingyas form one of the smallest but most vulnerable groups within this population.
Between Law and Humanity
The tension between sovereignty and humanitarianism defines Nepal’s position. Every state has the right to control its borders, yet that right must coexist with the duty to protect life. As one scholar notes, asylum is both a legal and moral act—it tests the character of a state.
Nepal’s refusal to adopt refugee legislation may reflect caution, but it also reveals fear: the fear that acknowledging refugees will attract more. This fear is understandable for a small, resource-strapped country—but it cannot justify inaction.
Humanitarian crises are not solved by invisibility. Legal recognition would not impose unbearable costs. Instead, it would bring transparency: a registry of refugees, work permits, education access, and cooperation with international partners. These measures would strengthen governance, not weaken it.
The Human Story
Behind legal ambiguity are human lives. A Rohingya father in Kapan says he fled Rakhine with his wife and two daughters after soldiers burned their village. He sells tea near a construction site but earns barely enough to feed his family. His eldest daughter wants to be a nurse, but without citizenship, she cannot pursue higher education. “We are safe here,” he says, “but we are not alive.”
His words capture the essence of statelessness: safety without belonging. The right to refuge is not just a matter of borders—it is the right to exist within law.
Conclusion: From Compassion to Law
Nepal’s constitution promises dignity, equality, and protection from exploitation. Those promises remain incomplete until they include the stateless. The Rohingyas in Nepal are not a security threat; they are survivors of one of the century’s most brutal genocides.
Nepal has shown compassion, but compassion alone is fragile. What it needs now is law—a framework that protects refugees while safeguarding national interests. Such a step would honor Nepal’s human rights commitments and reaffirm its moral identity as a peaceful nation.
The choice before Nepal is clear: to remain a country of quiet sympathy or to become a country of principled protection. The Rohingya cannot wait forever in the shadows of legality. Their lives demand recognition—not as foreigners, but as human beings with the right to live in safety and dignity.
References
- Farzana, K. F. (2018). Memories of Burmese Rohingya Refugees: Contested Identity and Belonging. Palgrave Macmillan.
- Habiburahman & Ansel, S. (2019). First They Erased Our Name: A Rohingya Speaks. Scribe Publications.
- Online Khabar. Nepal Has Been a Safe Haven for Rohingyas but It Could Open Up a Pandora’s Box.
- Office of the High Commissioner for Human Rights (OHCHR). Reports on Refugee Protection and Non-Refoulement Principles.
- Kansakar, V. B. S. (2010). Nepal–India Open Border: Prospects, Problems, and Challenges.
Bijaya Khadka, PhD Scholar, Faculty of Humanities and Social Science, Pokhara University
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