COVID-19: Bombay HC Directs Union Of India To Issue Fresh Visa To 19-Yr-Old Girl Stranded At Dubai Airport Since 5 Days [Read Order]

A division bench of Justice SJ Kathawalla and Justice RI Chagla while hearing a writ petition filed by Nayla's mother Sabah Colabawalla, directed the union to issue a fresh visa to Nayla and enable her to come to Mumbai and be with her family in these difficult times.

Case Background

Nyla was born in the United States of America and is thus a citizen holding an American passport. She also has a valid Overseas Citizens of India card. She moved to India with her mother in July 2007. Since her move to India, Nyla studied at DY Patil International School and graduated from their International Board curriculum in May, 2019 and thereafter got admission at Tufts University, Boston, the USA for further studies.

Nyla was staying on campus at Tufts University, Boston. In the wake of the global coronavirus disease outbreak, the management at Tufts University in an email dated March 10, 2020 informed the students that the university would conduct classes across streams online for the remainder of the semester from March 25 and further directed the students staying on campus to vacate the campus by March 16 and return to their permanent residence.

However, since the Ministry of Health and Family Welfare, Government of India, issued a Consolidated Travel Advisory for Novel Coronavirus (COVID -19) dated March 11, 2020, all existing visas (excluding diplomatic, official, UN/International Organisations, employment, project visas) were suspended till April 15, 2020. The visa free travel facilities granted to such Overseas Citizens of India card holders were also kept in abeyance till April 15, 2020.

The said advisory further provided that if any foreigners are intending to travel to India, they could apply to the nearest Indian Mission for grant of visa making out compelling reasons.

Nyla boarded her flight operated by Emirates Airlines at Boston at 11 pm Boston time on March 12, 2020 (3 am GMT on March 13 which is 8:30 AM IST on March 13) and arrived at transit at Dubai at 6:45 pm Dubai time. She was supposed to board the flight for her remainder journey to Mumbai at Dubai at 9:50 pm Dubai time (11:20 pm IST). However, Emirates Airlines staff at Dubai did not allow Nyla to board the flight, since, according to them, Nyla was already past the deadline of 1200 GMT.

Submissions

Senior Advocate DD Madon appeared on behalf of Nyla and argued that as a result of this action, Nyla was stranded at Dubai and continues to be stranded away from her family residing at Mumbai even on the date of filing of the present petition. He further submitted that the petitioner's peculiar case was explained to the Indian Diplomatic Mission in Dubai over the telephone and they were requested to allow her to travel to Mumbai as hers was a compelling case since she is only 19 years old and stranded at Dubai without her family and she cannot return to Boston as her university has asked the students to return to their place of permanent residence.

However, the Indian Diplomatic Mission in Dubai refused to provide any kind of assistance to Nyla. Madon said that the authorities of the concerned airline in Dubai misinterpreted the consolidated travel advisory. It is clear that as long as the passenger is departing from its original port of departure before 12:00 GMT (5.30 pm IST) on March 13, 2020 the passenger would be entitled to complete the journey and thereafter arrive into Mumbai, Madon said.

Madon also cited the example of certain OCI holders who were stranded in Istanbul and who had not even taken a flight from their port of departure before the deadline were also on compelling grounds issued a visa by the Indian Embassy in Istanbul so as to permit them to return to their permanent place of residence in India. It would be arbitrary to treat the petitioner's daughter differently by another Indian Diplomatic Mission in Dubai.

Advocate Rui Rodrigues appeared for the union but did not dispute the petitioner's interpretation of the consolidated travel advisory.

Judgment

After examining DD Madon's submissions and material placed on record, Court observed-

"We find considerable force in the arguments canvassed by Mr. Madon. The clauses of the Consolidated Travel Advisory, as well as the Visa restrictions issued by the Bureau of Immigration, make it quite clear that all existing visas (excluding diplomatic, official, UN/International Organisations, employment, project visas) stand suspended till 15th April 2020. This restriction was to come into effect from 1200 GMT on 13th March, 2020 at the port of departure. A port of departure would mean original port of departure, in the present case being Boston, U.S.A. A passenger in transit would not fall within the word 'port of departure'. This is clear not only from clause 1 of Consolidated Travel Advisory dated 11th March, 2020 but also clause (ii) of the circular issued by the Bureau of Immigration dated 13th March, 2020. What is to be seen is the time of departure and not the time of arrival.

On an interpretation of these two circulars we find considerable force in the arguments advanced by Mr. Madon that Nyla could not have been denied boarding her onward flight to Mumbai on the strength of these circulars nor can the respondents deny her a visa and leave her stranded at Dubai away from her family and permanent place of residence in India. Clearly, these circulars have been misinterpreted by the Airlines by not allowing Nyla to board her onward flight from Dubai to Mumbai. We also see no reason why the petitioner's daughter should be discriminated against when other OCI holders in Istanbul were issued a Visa on compelling grounds."

Court noted that the circumstances were compelling enough for the Indian Diplomatic Mission to consider Nayla's case, yet relief was not given. Thus, Court directed the union to issue a fresh visa to Nayla so that she can come back to Mumbai.

The bench pointed to another advisory dated March 18 (1200 GMT at the port of first departure). Under this advisory, persons returning from UAE shall, after the deadline, be quarantined for a period of 14 days. Court said-

"We make it clear that in the case there is any delay on the part of the respondents to issue a visa to Nyla in compliance with this order, then the Petitioner shall keep her daughter self quarantined at home. Needless to state that Nyla shall be checked on arrival at Mumbai airport just like all other passengers."