Kerala HC’s friendly advice to US citizen wanting to stay on

New Delhi: The Kerala High Court has refused to provide any relief to Johnny Paul Pierce, a 74-year-old US citizen who had sought extension of his stay in India as he feels safer in Kerala than in America.

The high court refused his petition on the ground that granting or extending the limit of visa to foreign nationals is the exclusive domain of the Government of India.

Pierce’s visa is valid till January 26, 2025, but as per the norms of the visa, he can stay only up to 180 days on a single visit in India. He arrived in Kerala on February 26. This means he has to leave India before August 26. He will be allowed to come back.

Pierce had also made a representation to the immigration commissioner and registration officer of foreigners to allow him to extend his stay after lockdown was imposed in the wake of the COVID 19 pandemic. He said that he saw business opportunities in Kerala (he is in Kochi), and sought to convert his tourist visa into a business visa, without following the process of going to the USA and then seeking conversion of the visa.

Not getting any positive response from the immigration authorities he knocked on the doors of the High Court of Kerala through a writ petition under Article 226 of the Constitution of India stating that his visa is valid till 2025, so there should be no impediment to his stay for 180 days.

The single bench of Justice CS Dias observed that a foreign citizen cannot claim the fundamental right to reside and settle in India under Article 19 (1) (e) of the Constitution. The bench added that the power of the Government of India to expel foreigners is absolute and unlimited.

Court has referred various precedents in support of its verdict such as Luis de Radt v. Union of India and others [(191) 3 SCC 554], State of Arunachal Pradesh v. Khudiram Chakma [1949). (1) SCC 715], Hans Müller of Nuremberg. Superintendent, Presidency Jail, Calcutta [AIR 1955 SC 37]].

Despite the above discussed legal arguments, the court stated that the petitioner’s love for India was “heartfelt”, but it’s not the court’s jurisdiction to allow the petitioner to stay beyond the visa period. However, as far the state of epidemic and suspension of international flights are concerned the court has directed the FRO to consider the petitioner’s representation within a period of two weeks, strictly in accordance with the applicable guidelines and policies.

The Central Government informed the court that “as per the Office Memorandum issued by the Ministry of Home Affairs foreigners, whose visa expired or is expiring during the period from February 1 till the lifting of the ban on international flights, can apply online for visa extension, and that they will be granted an extension for a period up to 30 days from the date of the lifting of the suspension of international flights, and that they will be allowed to exit India without any overstay penalty.”

– India Legal Bureau

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