Bombay High Court recently dismissed a writ petition filed by a foreigner alleging that the denial of her visa by the Indian Government was contrary to law. In Stelmakh Leonid Iuliia v Secretary to the Ministry of External Affairs, Government of India & Ors, the petitioner, a Ukraine citizen, challenged the denial of her visa because of a new rule that fixes the minimum income criterion for an employment visa at US$25,000. The petitioner had secured a job as an analyst with JP Morgan Services India.
The court found that apart from the income rule, the visa application was rejected on the grounds of government policy whereby an employment visa is not granted for jobs for which qualified Indians are available. As such, employment visas cannot be granted for routine, ordinary or secretarial and clerical jobs.
The court while dismissing the writ petition held that “it is not a fundamental right of a foreign national to get employment visa in India”. It said fundamental rights other than right to life and liberty (article 21) are not amenable to foreigners in India. If the visa is rejected on the basis of policy framed by the government of India, the court cannot “take a judicial review in such a matter”.
The court further held that the rejection of a visa by the government is not a justiciable issue and the high court cannot issue any writ under article 226 of the constitution in connection with the availability of fundamental rights where a foreign citizen is concerned.
