A foreign national prisoner refers to an individual who is confined or imprisoned in a foreign country, despite being a citizen of another nation. In simpler terms, it means that this person is not originally from the country they are incarcerated in but is detained within its legal system and detention facilities due to suspected or convicted criminal activity committed within that foreign nation.

Foreign national prisoners often encounter various complex issues and hurdles that stem from their nationality. These challenges can greatly impact the way they are treated and the rights they have while in custody. Moreover, individuals face communication challenges in the legal system and interaction with fellow inmates and prison staff due to language barriers. This difficulty significantly hampers their ability to navigate through the legal processes effectively.

In addition, foreign nationals who are imprisoned may face challenges in comprehending and exercising their legal rights, as the laws and regulations of the foreign country may differ from their own. They also have the right to receive consular assistance from their home country's embassy, although this support may not always be readily available or easily accessible, further complicating an already difficult situation. Taken together, these unique circumstances and obstacles distinguish foreign national prisoners from others within the prison system.

Problems faced by Foreign National Prisoners

The foreign national prisoners face many problems in jails.

Their main problems may be categorized as follows:
Foreign nationals incarcerated in local prisons face a myriad of challenges that set them apart from the general prison population. One significant issue is their isolation from other prisoners, resulting in social and cultural alienation. This isolation can lead to feelings of loneliness and disconnect from the prison community.

Language barriers compound their difficulties, making it challenging to communicate with fellow inmates and prison staff. This linguistic divide can exacerbate their sense of isolation and hinder their understanding of prison rules and regulations.

Another distressing aspect is the limited or nonexistent family contact. Many foreign inmates struggle to maintain connections with their loved ones, leading to emotional distress and further isolation from the outside world.

Discrimination is another issue faced by foreign nationals in prison, stemming from a limited understanding of local prison procedures and criminal justice systems. This lack of knowledge can lead to unfair treatment and discriminatory sentencing.

Accessing recreational and rehabilitation programs can be a challenge, denying these inmates opportunities for personal growth and rehabilitation. Additionally, obtaining consular support can be difficult, as diplomatic missions may not always be willing or able to provide assistance, leaving foreign prisoners feeling abandoned.

Financial woes are common during their incarceration and upon their return to their home countries. They may also find themselves excluded from alternative sentencing options due to their foreigner status, further complicating their legal situations.

Moreover, obtaining free legal aid can be difficult, and they may not have access to information about their rights and obligations due to language barriers and a lack of prison rules in different languages.

Parole, a privilege granted to other inmates, is often denied to foreign nationals. The lack of sensitivity among prison staff and the general population toward foreign inmates can further alienate them.

Access to prescribed medicines may be problematic, and some airlines may refuse boarding at the last minute, causing financial losses and distress. Delayed nationality verification by foreign embassies, often due to the seizure of passports, adds to their woes.

Arranging airplane tickets for released prisoners and coordinating between various authorities involved in their release can be challenging and time-consuming. Furthermore, these inmates often have limited interaction with their advocates, leaving them unaware of the status of their legal cases. Overall, foreign nationals in local prisons face a range of complex challenges that demand attention and support to ensure their rights and well-being are upheld.

Acts, Rules and Orders Governing Foreign National Prisoners in India

Foreigners Act 1946, the Foreigners Order 1948, the Foreigner (Tribunal) Order 1964, Foreigner's Tribunal and Illegal Migrants (Determination Tribunals) 1979, the Passport (Entry into India) Act 1920, the Citizenship Act 1955, the Citizenship (Registration of Citizen & Issue of National Identity Cards) Rules 2003, the Citizenship Rules 2009 and the Repatriation of Prisoners Act 2003 govern the entry, stay, and removal of foreigners in India. If the High Court or Supreme Court passes any order vis-à-vis foreign national prisoners, the same will have to be followed even if they are in contravention of any existing act or rule.

Foreign National Prisoners in India

The number of foreign nation prisoners has increased by 13% in the year 2021 as compared to the year 2020. Out of the total of 5,565 foreign national prisoners in the year 2021, 4646 were males, 906 females and 13 transgender. The convicts comprised of 19.4% and the under-trial prisoners consisted of 74.6% while 0.7% were detenues.

In 2021, the majority of foreign national convicts were from Bangladesh (46.8%), with Nepal (26%), Nigeria (6.8%), and Pakistan (5.8%) following behind. Amongst these countries, West Bengal had the highest number of foreign national convicts in prisons at 30.5%, followed by Uttar Pradesh at 23.8% and Delhi at 5.6%. Similarly, when it comes to foreign national under-trial prisoners, the highest percentage was from Bangladesh at 41.8%, with Nigeria at 18.7% and Nepal at 14.2%.

West Bengal accounted for the highest number of foreign national under-trial prisoners in their jails (28.4%), followed by Delhi (14.2%) and Maharashtra (12.1%) in the year 2021. The share of foreign national prisoners out of the total prisoners' population at the national level was 1% in the year 2021.

In some countries a majority of the total population of the prisons are constituted of foreign national prisoners. As for example, out of the total prisoners' population in the jails of UAE, 90% are foreign national prisoners. In Europe, foreign national prisoners consist of approximately 21% of the total prisoners' population.

Foreign National Prisoners in West Bengal

In the year 2019, in West Bengal out of total prisoners' population of 1911, there were 1616 males, 256 females and no transgender. There were 412 convicts and 1222 under-trial prisoners.

In the year 2020, in West Bengal out of total prisoners' population of 1982, there were 1553 males, 429 females and no transgender. There were 466 convicts and 1295 under-trial prisoners.

In the year 2021, in West Bengal out of total prisoners' population of 1746, there were 1380 males, 353 females and 13 transgender. There were 329 convicts and 1179 under-trial prisoners.

The number of foreign national prisoners in West Bengal has decreased considerably in the year 2021 (1746), as compared to that in the year 2020 (1982) and 2019 (1911).

Out of the total of 1746 foreign national prisoners in the year 2021 in West Bengal, 3 were from North American Countries other than Canada, 01 from South American Countries, 06 Africans (other than Nigerians), 01 from Nigeria, 01 from CIS (Russian) Federation, 02 Chinese, 01 Nepalese, 10 Pakistanis, 55 from Myanmar, 1658 Bangladeshis, 01 Sri Lankan and 07 Other Foreign Nationals. 95% of the total foreign national prisoners in the prisons of West Bengal were from Bangladesh.

Repatriation and Deportation of Foreign National Prisoners

In respect of any foreign national prisoner convicted under Foreigners Act, 1946, Indian Penal Code or any other Act, direction of deportation/repatriation of that foreign national is issued to the concerned jail superintendent by the Sentencing Court on completion of the period of Sentence.

Accordingly, necessary initiative is taken by him. Generally, Bangladeshi National Prisoners are sent back to their native country mostly by the Deportation Process and Repatriation Process is followed in case of other foreign nationals. In case of some Bangladeshi national prisoners too the repatriation process is used, as per order of the court.

Deportation Process of Bangladeshi National Prisoners

When any Bangladeshi national prisoner is about to complete his/her period of sentence, a proposal for deportation along with full particulars in prescribed format with recent photograph of that released prisoner and Jail Warrant/Commitment Warrant having endorsement of direction of deportation are sent to the Home and Hill Affairs Department (Foreigners Branch), SAARC and VISA Section, Government of West Bengal.

The Home and Hill Affairs Department (Foreigners Branch) then forwards the list of such prisoners to the Bangladesh Deputy High Commissioner, Kolkata for nationality verification. On completion of nationality verification, order of deportation from the Home and Hill Affairs Department (Foreigners Branch) is issued. The order is sent to the Border Security Force Head Quarter of the State at Kolkata for fixing the date and venue of deportation of the released prisoner.

The superintendent of the concerned correctional home also informs the matter along with all documents to the Superintendent of Police, DIB, of the district under whose jurisdiction the correctional home is located or to the Deputy Commissioner of Police (Special Branch) of the concerned Police Commissionerate requesting them to give clearance and provide police escort.

He also liaises with BSF authorities in this regard regarding the date of deportation etc. After completion of all formalities, Bangladeshi national released prisoners are handed over to the police escort officer reporting at the correctional home in presence of the officer deputed from the concerned Special Branch/DIB on the date fixed for deportation, who in turn take the prisoner to the venue of deportation at the Indo-Bangladesh Border and hand him/her over to the BSF personnel posted there.

The BSF personnel take the prisoners along the Indo-Bangladesh border and deport them to Bangladesh at a convenient time. The deportation of any Bangladeshi national released prisoners requires the involvement of Home and Hill Affairs Department (Foreigners Branch) of the Government of West Bengal, Directorate of Correctional Services, West Bengal, District Superintendent of Police, DIB, of the concerned district/Deputy Commissioner of Police of Special Branch of the concerned Police Commissionerate, Border Security Force (BSF) and Superintendent of the concerned Correctional Home.

Repatriation Process of Other Foreign National Prisoners
When any foreign national prisoner other than Bangladeshi national prisoner completes his/her sentence, the proposal for repatriation along with full particulars in prescribed format with recent photograph of that released prisoner and Jail Warrant/Commitment Warrant having endorsement of direction of repatriation are sent to the Home and Hill Affairs Department (Foreigners Branch), SAARC and VISA Section, West Bengal.

The prisoner's petition is also taken vis-à-vis one surety who will bear expenditure of airfare and other cost during repatriation of the foreign national. The Home and Hill Affairs Department (Foreigners Branch), SAARC and VISA Section, West Bengal sends all the related documents of the prisoner to the Ministry of External Affairs, Government of India, who in turn send the necessary documents to the concerned embassy who issue ETD (Emergency Travel Documents valid for one month) and send the same to FRRO, Kolkata wherefrom it is sent to the superintendent of the correctional home, who hand over the same to the foreign national prisoner asking him to arrange for air ticket et al with the help of his relatives or personally. Sometimes, FRRO arrange for the air ticket in case of inability of the foreign national prisoner to purchase the ticket.

After the purchase of ticket, the concerned airlines are informed of the travel plan. If required, representatives of the embassy may visit the correctional home to meet the foreign national prisoner for nationality verification, as per order of the Ministry of External Affairs, Government of India and DG/ADG/IG of Correctional Services, West Bengal. The correctional home authority receives ETC and Order for repatriation from the FRRO.

Accordingly, the correctional home authority informs along with all documents the Superintendent of Police, DIB, under whose jurisdiction the correctional home lies or to the concerned Deputy Commissioner of Police, Special Branch for escorting the prisoner to the airport. After completion of all formalities the said foreign national is handed over to the police escort in presence of the officer deputed from Special Branch/DIB along with all documents.

After completion of immigration and other formalities the foreign national is handed over to the immigration department of the airport authority by the Police Escort for repatriation. Repatriation requires involvement of FRRO, Home and Hill Affairs Department (Foreigners Branch) of the State Government, Ministry of External Affairs, Government of India, District Superintendent of Police, DIB or Deputy Commissioner of Police, Special Branch, Border Security Force (BSF), concerned airlines, Immigration department at the airport and superintendent of the correctional home.

Solutions to the Problems of Foreign National Prisoners
Several measures can be taken to improve the conditions and treatment of foreign national prisoners in local prisons. One essential step is to establish a corpus fund that can provide financial assistance for their travel and other expenses upon release. This fund could be managed by the prison headquarters, foreign embassies, or the Foreigners Regional Registration Office (FRRO) to ensure they have the necessary support for a smooth transition back to their home countries.

To address their isolation, regular family contact should be facilitated using modern communication methods like mobile phones, video calls, or video conferencing. Inclusion in recreational and rehabilitation programs within the prisons can help improve their well-being and rehabilitation prospects.

Financial assistance, especially in emergencies, can be provided by concerned foreign embassies or the state government through the prison department. This support can alleviate financial burdens faced by foreign national prisoners during their incarceration.

Sensitivity and cultural awareness programs for prison staff and the general prison population should be implemented to ensure foreign national prisoners are treated with respect. Removing isolation by facilitating interactions with local prisoners while respecting cultural differences can create a more inclusive environment.

Additionally, language barriers can be addressed by hiring interpreters or seeking assistance from embassies. Including foreign nationals in the framework of alternatives to imprisonment and providing free legal aid can help protect their rights.

Efforts should be made to translate prison rules and regulations into different languages to aid foreign national prisoners' understanding of local laws. Ensuring prompt notification of arrests to their family members, as well as expediting nationality verification by concerned embassies, can improve their overall experience.

Medical care, including access to prescribed medicines, should be a priority, and arrangements can be made for remote consultations with their doctors. Diplomatic missions should be educated on their responsibilities to provide consular support, and immigration authorities should be sensitized to address the specific needs of foreign national prisoners.

Facilitating parole, expediting court cases, and encouraging prompt police investigations can help expedite their release. Advocates for their legal cases can be funded by concerned embassies, given the limited financial resources of the foreign national prisoners. Airlines should be informed about the importance of not refusing boarding to foreign national prisoners without substantial reasons.

Effective coordination among various authorities, including prison and police departments, airlines, embassies, and immigration officials, can streamline processes and improve overall support for foreign national prisoners.

Addressing the issue of seized passports and other documents upon release is crucial, ensuring that alternative arrangements are made for those with forged passports.

International organizations like the United Nations Human Rights Organization can review the plight of foreign national prisoners in all countries and provide guidelines to member countries for their treatment and release. Efforts should be made to prevent sexual exploitation and ensure the welfare of foreign national women prisoners and transgender individuals.

Collaborative efforts between countries and embassies can lead to the exchange of prisoners and expedited deportation and extradition processes. Adequate planning for their release, improved healthcare facilities, upgraded prison infrastructure, and the reduction of overcrowding are essential for their well-being.

Recruiting jail officers fluent in foreign languages can enhance communication, and regular interactions can provide opportunities for prisoners to express grievances. Keeping them informed about the progress of their court cases and maintaining their hope for freedom is crucial for their mental and emotional well-being.

Conclusion
While it is true that foreign national prisoners lodged in different jails face a number of problems right from their incarceration to release throughout the world, their condition can be improved by taking various measures as discussed above by the concerned authorities and by establishing better coordination between the various stake holders in this regard.

Their plight needs to be discussed at the various levels in order to ameliorate their condition in jails in different countries of the world and facilitate their smooth release from the prisons and subsequent return to their native countries.

Their various rights guaranteed by the different treaties, laws, rules, guidelines and directions given by the competent authorities and agencies should be guaranteed and safeguarded to make their stay in prisons more comfortable and their release from prison and return to their native countries more humane and smooth. By taking the corrective measure, we can ensure their mental health, prevent their trauma and agony, reduce the number of prisoners' population of the jails and also bring down the number of deaths in prisons.

References:

1. The Issue, Penal Reform, International - https://www.penalreform.org/issues/foreign-nationals/the-issue/
2. The specific needs of foreign national prisoners and the threat to their mental health from being imprisoned in a foreign country, By Magali-Fleur Barnoux, Jane Louise Wood, Dept. of Psychology, Keynes College, University of Kent, Canterbury, Kent, CT27NP, 2023 - https://www.researchgate.net/publication/257525611_The_specific_needs_of_foreign_national_prisoners_and_the_threat_to_their_mental_health_from_being_imprisoned_in_a_foreign_country.
3. Problems faced by foreign nationals in Indian prisons at every step of the criminal justice process, Sabrang - https://sabrangindia.in/article/problems-faced-foreign-nationals-indian-prisons-every-step-criminal-justice-process/
4. The mental health of foreign national prisoners, Till, Piyal Sen, Lucia Chaplin, Edward Grange Alex Till, Tim Exworthy, Andrew Forrester, 4 January 2019 - https://pubmed.ncbi.nlm.nih.gov/30616174/
5. How do foreign prisoners eat, talk, live in Indian Jails? Shanmughasundaran j/TNN/Updated: August 17, 2019 - http://timesofindia.indiatimes.com/india/how-do-foreign-prisoners-eat-talk-live-in-indian-jails
6. Report of the National Crime Record Bureau (NCRB)
7. Reports all Sixty (60) Correctional Homes of West Bengal

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565