GUSTAVO MARIO QUINTEROS AND ALANA FRANCES KEARNS GREEN AND TULSI SITA QUINTEROS (MINOR) REPRESENTED BY MOTHER v. UNION OF INDIA, THE COMMISSIONER OF IMMIGRATION, THE DISTRICT POLICE CHIEF, FOREIGNERS REGISTRATION OFFICER (FRRO)

**WP(C).No.14171 OF 2020** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 29TH DAY OF JULY 2020 / 7TH SRAVANA, 1942** ## **WP(C).No.14171 OF 2020(V)** ## **PETITIONER/S:** **1 GUSTAVO MARIO QUINTEROS AGED 62 YEARS S/O.OSCAR CESAR QUINTEROS,HAVING PERMANENT RESIDENCE AT 1401 N CATALINA ST.4,LOS ANGELES, CALIFORNIA,90027,NOW STAYING AT MATA AMRITANANDAMAYI MATH, AMRITAPURAI P.O., KOLLAM DISTRICT, PIN-690546 2 ALANA FRANCES KEARNS GREEN AGED 35 YEARS W/O.GUSTAVO MARIO QUINTEROS,HAVING PERMANENT RESIDENCE AT 1401 N CATALINA ST.4,LOS ANGELES, CALIFORNIA,90027,NOW STAYING AT MATA AMRITANANDAMAYI MATH, AMRITAPURAI P.O., KOLLAM DISTRICT, PIN-690546** **3 TULSI SITA QUINTEROS (MINOR) AGED 3 YEARS REPRESENTED BY HER MOTHER ALANA FRANCES KEARNS GREEN, D/O.GUSTAVO MARIO QUINTEROS,HAVING PERMANENT RESIDENCE AT 1401 N CATALINA ST.4,LOS ANGELES, CALIFORNIA,90027,NOW STAYING AT MATA AMRITANANDAMAYI MATH, AMRITAPURAI P.O., KOLLAM DISTRICT, PIN-690546** **BY ADVS. SRI.S.SAJU SMT.NEELANJANA NAIR SRI.A.V.SAJAN** **WP(C).No.14171 OF 2020** **2** ## **RESPONDENT/S:** - **1 THE UNION OF INDIA REP BY ITS SECRETARY TO THE GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI-110 001** - **2 THE COMMISSIONER OF IMMIGRATION, BUREAU OF IMMIGRATION, MINISTRY OF HOME AFFAIRS, EAST BLOCK-VIII, LEVEL-V,SECTOR-1, R.K.PURAM, NEW DELHI,PIN-110 066.** - **3 THE DISTRICT POLICE CHIEF, THE FOREIGNERS REGISTRATION OFFICE, OFFICE OF THE DISTRICT POLICE CHIEF, KOLLAM CITY,PIN-691 001** - **4 FOREIGNERS REGISTRATION OFFICER (FRRO) FOREIGNERS REGISTRATION OFFICE, T.C.30/13983, FIRST FLOOR, AMRITH PLAZA, NALUMUKKU, PETTAH P.O., THIRUVANANTHAPURAM,PIN-695 024. R1-2, R4 BY SRI.SUVIN R.MENON, CGC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14171 OF 2020** **3** ## **JUDGMENT** The petitioners are foreign nationals . The petitioners 1 and 2 are husband and wife. The 3[rd] petitioner is their daughter. The 1[st] petitioner is an Argentinean national and the petitioners 2 and 3 are American nationals. 2. The 1[st] petitioner, with an intention to start a Limited Liability Partnership company in the medical field, had secured a business visa and came down to India with the petitioners 2 and 3. Although the petitioners sought for an extension of their visas, the 4[th] respondent has granted only a 'GRATIS' exit or on before 15.8.2020. 3. The 1[st] petitioner laments that the policy guidelines issued by the Government of India in respect of business visa, with multiple entries, though having a validity of one year, he cannot continuously stay for a period exceeding 180 days during each visit. The 1[st] petitioner is not permitted to stay back in India **WP(C).No.14171 OF 2020** **4** beyond 15.8.2020 and the petitioners 2 an 3 beyond 1.8.2020. 4. During this pandemic period, the petitioners have been stranded at the Amritapuri Ashram, Kollam. For the last three months, the petitioners are remaining idle and helpless. Their greatest sorrow is that they were impelled to drop their business at the beginning stage of its progress. The sad part is that they have already invested their time and money in the proposed business. Since the pandemic is an unpredictable event, the 1[st] petitioner's business prospects is also affected. In the said scenario, the petitioners are to be granted extensions of their visas, for which they have submitted Ext.P8 representation. The petitioners have received a tailor-made reply from the 2[nd] respondent, who has not adverted to any of the requests made by the petitioners. Hence the petitioners seek humanitarian interference by this Court because they are not in a position to complete their purpose of stay in India. The visas of the **WP(C).No.14171 OF 2020** **5** petitioners may be extended for a further period of one year. 5. Sri.Saju.S.Nair, the learned counsel appearing for the petitioners, submitted that a lenient view may be taken in the matter because the petitioners have not achieved the purpose for which they have come down to India. Moreover, as the 1[st] petitioner has a valid visa for a year, there is no legal impediment in him staying back in the Country beyond 180 days from the date of his arrival. The 2[nd] respondent has not considered Ext.P8 representation, but has sent a stereo type reply. 6. Sri.Suvin Menon, the learned Central Government Standing Counsel, appearing for the respondents argued that the Government of India, Ministry of Home Affairs, Foreigners Division, by Office Memorandum dated 5.5.2020, has considered the problem relating to foreign nationals stranded in India due to the pandemic, and decided as follows: **WP(C).No.14171 OF 2020** **6** “Regular Visa e-visa or stay stipulation, of such foreign nationals whose visas have expired or would be expiring during the period from 01.02.2020 (Midnight) till the date on which prohibition on international air travel of passengers from India is lifted by the Government of India, would be extended on 'GRATIS' basis on submission of online application by the foreigners. Such extensions would be granted for a period upto 30 days from the date of lifting of prohibition on international air travel of passengers from India without levy of overstay penalty. Exit to such foreign nationals, if so requested by them, will also be granted on the same lines.” 7. A foreign national does not have the right to reside and settle in India, as enshrined under Article 19(1)(e) of the Constitution of India, held the Honourable Supreme Court in **Louis De Raedt v. Union of India and Others** [(1991) 3 SCC 554]. 8. The Honourable Supreme Court in **State of** **WP(C).No.14171 OF 2020** **7** **Arunachal Pradesh v. Khudiram Chakma** [(1994) Supp. (1) SCC 615] has held that Article 19 (1) (d) and (e) are unavailable to foreigner nationals because these rights are conferred only on citizens. The machinery of Article 14 also cannot be invoked by foreign nationals. Rights under Articles 19(1) (d) and (e) are expressly withheld to foreigner nationals. 9. The Constitution Bench of the Honourable Supreme Court in **Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta** [AIR 1955 SC 367] has held that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. 10. In view of the categoric declaration of law by the Honourable Supreme Court, the plea of the petitioners to permit them to stay back in India cannot be accepted, as it falls within the purview of the guidelines and the discretion of the Government of **WP(C).No.14171 OF 2020** **8** India. The 1[st] petitioner cannot be heard that the guidelines/policies/regulations formulated by the Government of India, that a foreign national who has been granted a business visa having validity of one year has to leave India within 180 days, is irrational or unreasonable. The petitioners do not have a case that there is an infraction of Article 21 of the Constitution of India. Therefore, the plea of the petitioners that they may be permitted to stay for a further period of one year and their visas may be extended without leaving the Country, cannot be entertained by this Court. Grant and extension of visas to foreign nationals fall exclusively within the domain of the Government of India, to ensure the sovereignty and the national security of the Country, which stands at the highest pedestal. The scope of judicial review in such matters is minimal. 11. The petitioners, who have come to India on valid visas, were very well aware of the conditions in the **WP(C).No.14171 OF 2020** **9** visas before they left their Country. Thus, it is too late in the day for them to raise a grievance on the visa conditions. Nevertheless, because of the unforeseen situation caused due to the COVID-19 pandemic, and the promulgation of the Office Memorandum dated 5.5.2020 and also the non-resumption of regular international flights, I deem it appropriate, without expressing anything on the merits of the issue, to direct the 2[nd] respondent to consider Ext.P-8 representation submitted by the petitioners, strictly in accordance with the guidelines/regulations/policies of the Government of India, and dispose of the same as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a copy of this judgment. ma/30.7.2020 Sd/- **C.S.DIAS, JUDGE** ## /True copy/ P.S to Judge **WP(C).No.14171 OF 2020** **10** ## **APPENDIX OF WP(C) 14171/2020** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE CERTIFICATE OF MARRIAGE OF THE 1ST AND 2ND PETITIONERS ISSUED BY THE COUNTRY OF LOS ANGELES 29.07.2016** **EXHIBIT P2** **TRUE COPY OF THE RELEVANT PAGES OF PASSPORT OF THE 1ST PETITIONER BEARING NO.AAF741922 AND BUSINESS VISA PAGE BEARING NO.90165FDEJ VALID TILL 15.07.2020** - **EXHIBIT P3 TRUE COPY OF EXIT PERMIT ISSUED BY THE 4TH RESPONDENT ,FOREIGNERS REGISTRATION OFFICE (FRRO) THIRUVANANTHAPURAM TO THE 1ST PETITIONER DATED 29.06.2020** - **EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT BEARING NO.488584131 AND TOURIST VISA PAGE OF THE 2ND PETITIONER** **EXHIBIT P5** - **TRUE COPY OF EXIT PERMIT ISSUED BY THE 4TH RESPONDENT, FOREIGNERS REGISTRATION OFFICE (FRRO), THIRUVANANTHAPURAM TO THE 2ND PETITIONER DATED 25.06.2020** - **EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT BEARING NO.595798227 AND TOURIST VISA PAGE OF THE 3RD PETITIONER** - **EXHIBIT P7 TRUE COPY OF EXIST PERMIT ISSUED BY THE 4TH RESPONDENT, FOREIGNERS REGISTRATION OFFICE (FRRO), THIRUVANATHAPURAM, TO THE 3RD PETITIONER DATED 25.06.2020** - **EXHIBIT P8** - **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER THROUGH EMAIL BEFORE THE 2ND AND 4TH RESPONDENT DATED 30.06.2020** **WP(C).No.14171 OF 2020** **11** **EXHIBIT P9 THE TRUE COPY OF THE REPLY RECEIVED BY THE PETITIONER ON 01.07.2020 IN RESPONDENT TO EXT-P8 REPRESENTATION**