In a significant submission before the Supreme Court, the Union Government has clarified that a foreign national whose nationality is unknown or unverified cannot be deported unless the person's home country confirms the nationality and agrees to accept them. The Centre stated that the deportation process cannot even begin without nationality verification and the issuance of valid travel documents.

The submission was made through an affidavit filed by the Ministry of Home Affairs (MHA) in the pending writ petition, Rajubala Das v. Union of India & Anr. (Writ Petition (Criminal) No. 234 of 2020), in compliance with the Supreme Court's order dated March 21, 2025.

Deportation Requires Nationality Verification

According to the affidavit, foreign nationals who have completed their sentence or are no longer required in any criminal proceedings may ordinarily be deported by the concerned State Government, Union Territory Administration, or the Foreigners Regional Registration Office (FRRO), provided they possess a valid passport or travel document and no other criminal case is pending against them.

However, where such documents are unavailable, the Centre explained that deportation is legally impossible until the nationality of the individual is verified by the concerned foreign government.

The affidavit states:

"It is necessary to obtain the requisite travel document from the Embassy/High Commission of the country concerned through the process of nationality verification before he/she can be deported."

The Union further emphasized:

"A foreign national whose nationality is unknown/unverified can be deported to their home country only upon confirmation of their nationality, possession of a valid travel document, and acceptance by the home country concerned. The deportation procedure cannot be initiated without nationality verification."

Role of Embassies and Ministry of External Affairs

The Centre informed the Court that immediately after the arrest of such a foreign national—or upon registration of an FIR, whichever occurs earlier—the concerned State Government or FRRO/FRO should forward the individual's details and photograph to the Ministry of External Affairs (MEA).

The MEA then coordinates with the concerned Embassy or High Commission for nationality verification and issuance of travel documents required for deportation.

Restricted Movement Until Deportation

Pending nationality verification, the Union Government submitted that such illegal migrants cannot be allowed unrestricted liberty. It argued that restricting their movement is necessary to:

• Prevent absconding;
• Protect national security;
• Ensure their availability for eventual deportation.

The affidavit also stated that nationality verification is a sovereign function of the foreign State and therefore no mandatory time limit can be imposed on the foreign government for completing the verification process.

Consequently, the Centre submitted that such individuals should remain in designated holding centres until their nationality is confirmed and deportation becomes possible.

Reliance on Earlier Supreme Court Directions

The affidavit referred to the Supreme Court's decision in Bhim Singh v. Union of India (2012), pursuant to which the Ministry of Home Affairs had advised States and Union Territories that foreign nationals who have completed their prison sentence but cannot yet be deported due to pending nationality verification or lack of travel documents should be shifted from prisons to appropriate holding facilities outside jail premises, with restricted movement until repatriation.

Background of the Case

The issue has been under the Supreme Court's consideration for several years.

Previously, the Court questioned the Union Government and the Assam Government over the continued detention of persons declared to be foreigners without initiating effective deportation proceedings.

The matter is also connected with proceedings concerning the prolonged detention of alleged Bangladeshi nationals, where the Court had examined whether individuals could be kept in detention indefinitely instead of being deported.

Separate proceedings relating to the alleged forceful deportation of certain persons from West Bengal to Bangladesh are also pending before the Supreme Court.

The latest affidavit seeks to clarify the legal and practical limitations faced by the Government, asserting that deportation ultimately depends upon the cooperation and acceptance of the concerned foreign country.

Case Title: Rajubala Das v. Union of India & Anr.
Case No.: Writ Petition (Criminal) No. 234 of 2020