Bombay High Court orders release of Yemeni man detained for overstay, asks how he could be kept in lock-up

Mumbai: The Bombay High Court on Tuesday ordered the immediate release of a Yemeni national detained by the Mumbai police earlier this month for overstaying his visa and sought to know how could he be kept in a lock-up.

The court questioned as to how the man, Mohammed Qassim Mohammed Al Shibah -- a former airline employee -- could be kept in the lock-up at the Byculla police station since May 16, and noted his current detention was due to administrative lapses.

A bench of Justices Gauri Godse and Somasekhar Sundaresan lamented about the lack of proper detention facilities in the metropolis for persons detained in such cases.

The court emphasised the need for a Standard Operating Procedure (SOP) to handle illegal stay cases under the Foreigners Act.

The bench said the man shall be released forthwith and directed him to not leave the city without prior permission from the court.

Questioning as to how the man was detained without any formal order, the bench wondered who would be responsible if something untoward happened to him while in detention.

"What if something happens to the person...if he has a heart attack or some other medical emergency. The police officers need to understand the seriousness of the issue. Who would be responsible then?" the court said.

The man's family had petitioned the HC against the detention.

Al Shibah, a designated refugee under the United Nations Human Rights Council (UNHRC), had been living in India with his family after their visas expired in September 2015.

Deportation orders were issued against six members of his family, including three minors.

Advocate Wesley Menezes, appearing for Al Shibah, argued his client had no criminal background other than the overstay.

"He is not a threat to public order and has been seeking legal resettlement through proper channels," Menezes contended.

The advocate informed the court that the family, granted refugee status by the UNHRC until August 2027, is in the process of resettling in Canada -- a process that requires another 12 months in India.

Additional Public Prosecutor Poornima Kantharia opposed the plea, noting Al Shibah had overstayed his visa and was running a business in India.

Al Shibah, a former employee of Yemen Airlines, had travelled between India and his home country from 2002 to 2015. Following the outbreak of civil war and a change in leadership in the West Asian nation, he and his family sought asylum in India fearing persecution in their home country.

The court noted that he had entered India on valid documents and that his current detention was due to administrative lapses.

The court has asked the Maharashtra government to file a detailed affidavit to the plea and posted the matter for further hearing on June 16.