Illegal migrants or refugees

“The law is not meant to act a trap,” was a crucial statement, and a long-awaited reprieve, recently given by the Islamabad High Court (IHC) not only to Rahil Azizi — an Afghan refugee woman living in Pakistan — but also to the thousands of Afghan refugees living precarious lives in the country.

Rahil Azizi vs. The State & others. can be considered a milestone in Pakistan’s judicial engagement with the 1951 Refugee Convention, despite the fact that Pakistan has not ratified the Convention or its 1967 Protocol.

For the first time in Pakistan’s judicial history, Article 31 of the 1951 Refugee Convention, which deals with the situation of refugees unlawfully in the country of refuge, is referenced in full and the provision’s application is linked with the domestic law, The Foreigners Act 1946, which hitherto governed the cases related to Afghan refugees and asylum seekers.

Given the caretaker government’s recent decision to deport Afghans by November 1, 2023, this judgment must be viewed as a promising development of law and therefore needs careful attention. It can work as a timely aid to hundreds of Afghan refugees who are being subjected to arbitrary arrests, detentions, trials and deportation to Afghanistan in large numbers since November 2022 across Pakistan, after being charged with illegal entry and stay.

The precarity experienced by Afghans seeking refuge in Pakistan has risen alarmingly in the last year, with many of them having to hide for fear of arrest by the police and, consequently, many are battling poverty since they have lost their daily wage jobs.

THE CASE OF RAHIL AZIZI

The legal challenges Afghans have to face after entering Pakistan are illustrated by the hurdles Azizi has had to navigate. Like many other Afghans, Azizi left Afghanistan after the withdrawal of the US and its allied forces from Kabul in August 2021. Fearing for her life, she crossed the border to Pakistan without a visa. In Afghanistan, Azizi worked for the Afghan Police for five years. When the Taliban assumed control, an exodus of Afghan refugees began and thousands entered Pakistan — some with visas, others without.

Azizi had neither the hope nor the time to obtain a visa from the Taliban authorities. Once in Pakistan, Azizi approached the police station in Islamabad and voluntarily disclosed that she was a refugee without a visa. Azizi was initially sent to a government-administered shelter for women, but was subsequently arrested for an offence under Section 14(2) of the Foreigners Act 1946.

Section 14(2) of the Foreigners Act 1946 states: “Where any person knowingly enters into Pakistan illegally, he shall be guilty of an offence under this Act and shall be punished with imprisonment for a term which may extend to ten years and fine which may extend to ten thousand rupees.”

The charge clearly deemed Azizi a criminal to be punished as per the domestic law. She was sent to Adiala Jail as an under-trial prisoner. Her bail applications were rejected on two occasions by the lower courts. However, upon appeal, she was granted bail by the Islamabad High Court (IHC).

Whilst in custody, Azizi was assisted by the United Nations High Commissioner for Refugees (UNHCR) Pakistan office and was given an Asylum Seeker Certificate to confirm that she was a legitimate applicant for asylum status and her case was under consideration for refugee status. With UNHCR’s assistance, Azizi was also granted a Humanitarian Woman at Risk visa by Australia. All she needed now was an exit permit to leave Pakistan.

But her request was denied by the Ministry of Interior, which took the position that the exit permit could not be issued to a person under trial.

The fact that Azizi was granted an Asylum Seeker Certificate two months after her arrest and registration of the first information report (FIR), was used by the Ministry of Interior to argue that such a certificate of asylum status could not be applied retrospectively to legalise Azizi’s entry into Pakistan without a visa. As an accused person under trial, Azizi could not be allowed by the federation to leave Pakistan. Azizi spent nine months in Adiala Jail. Left with no other option, Azizi approached the IHC.

That the IHC ruled in favour of Azizi may, on the surface, appear a common sense decision. After all, much is known about the Taliban and why so many desperate Afghans escaped the country after August 2021, fearing persecution. Moreover, it was abundantly clear from the case facts — which were not disputed at any point by the Ministry of Interior during the case hearing — that Azizi did not enter Pakistan as an ‘enemy alien’. However, to arrive at such a judgment in Azizi’s favour was not so simple.

In the absence of any international or domestic legislation which deals with the governance of refugees and asylum seekers in Pakistan, the judgment marshals a number of arguments to substantiate the decision.

In seeking to understand the legal framework of granting asylum status to refugees in Pakistan, the IHC took into consideration various sources. These included the agreements between the Government of Pakistan, the Government of Afghanistan and the UNHCR, signed in the 1990s and extended post-2010, including the Tripartite Agreement — which acknowledges the UNHCR’s mandate for international protection — and the Cooperation Agreement, by which Pakistan accedes to the UNHCR granting of refugee status.

The other sources the IHC referred to were Article 4, 9 and 14 of the Constitution of Pakistan, which guarantee the right to liberty, as well as the right to dignity, of every person who, for the time being, is in Pakistan.

Also important were the obligations under international laws that Pakistan is a signatory to, including the International Convention on Civil and Political Rights 1966 (ICCPR) and Convention Against Torture 1984 (CAT), requiring Pakistan to observe the principle of non-refoulement (refoulement is the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution). This is also enshrined in Article 33 of the Refugee Convention 1951, and generally considered as part of customary international law, which is universally applicable in all civilised states.

A LANDMARK JUDGMENT?

However, the argument which shifted the decision in Azizi’s favour was based on a critical engagement with the Section 14(2) of the Foreigners Act, which constitutes an act of entry as a criminal offence “if there’s a ‘guilty intent’ or mens rea on part of an accused.”

Azizi successfully pleaded that she was seeking refuge to protect her life and did not have any criminal intent with which she entered Pakistan. Her disclosure to the police upon arrival in Pakistan was proof of that.

The IHC stated: “Just because there is no statutory or policy mechanism available to a foreigner to disclose to the State of Pakistan at the time of entry that he/she has entered to seek refuge and save their lives and to apply for asylum in accordance with principles of international law, does not mean that Section 14-B will come into place automatically to penalise such a foreigner.”

The IHC further added: “The law is not meant to act a trap…. That Pakistan does not have its own legal framework for refugees does not mean that anyone seeking refuge out of fear for his/her life or liberty must do so at the cost of being imprisoned….”

This judgment charts a pathway for the state on how to deal with refugees upon entering Pakistan unlawfully. Article 31 of the 1951 Refugee Convention also makes a key reference here. The IHC advised the following:

“Upon verification of the refugee status of a foreigner by UNHCR, the refugee must not be kept incarcerated like an under-trial prisoner. The Federal Government must prescribe a mechanism in consonance with Article 31 of the 1951 Refugee Convention to enable refugees to voluntarily report upon arrival in Pakistan that they seek refuge, and wish to register with UNHCR to seek asylum in a third country. It must also make arrangements to lodge refugees independently or in association with UNHCR, so that pending recognition of refugee status and decision on asylum applications, such refugees are not locked-up in prisons….”

The IHC ruled that the impugned FIR against Rahil Azizi be quashed and that the Ministry of Interior shall issue an exit permit to her to travel to Australia.

The above reading of the IHC ruling is crucial to narrate for underpinning the significance of the 1951 Refugee Convention for the domestic courts, especially in non-signatory states such as Pakistan. The Doctrine of Incorporation, endorsed by the Supreme Court of Pakistan in PLD 1999 SC 1026 was employed by the IHC, among other similar court rulings, to support the judgment. This doctrine requires that in cases where:

“a municipal law and an international law are consistent with each other and there is no conflict or inconsistency, the Court, to reinforce its view as to the interpretation of a constitutional provision or of a provision of statute, may press into service international law and/or conventions.”

And therefore, since Pakistan has treaty obligations under ICCPR and CAT which are in consonance with the guarantees under the Constitution of Pakistan “afforded to all persons for the time being in Pakistan”, “the 1951 Refugee Convention is relevant in view of the doctrine of incorporation…. Article 31 of the Refugee Convention thus becomes a useful aid to interpret section 14 of the Foreigners Act, read with provisions of ICCPR, CAT, the agreement entered into by and between the State of Pakistan and UNHCR, and Articles 4, 9, and 14 of the Constitution.”

MANAGEMENT OF AFGHAN REFUGEES: A POLITICAL OR ADMINISTRATIVE EXIGENCY?

The IHC judgment also brings to the fore a dilemma of determining someone’s status either as a refugee or an illegal foreigner, and reveals the restrictive and rather regressive reading of the Foreigners Act 1946, which is usually applied to Afghan migrants and refugees entering into and/or staying in Pakistan.

Since November 2022, a score of Afghan migrants, in similar conditions to Azizi, have been subjected to arbitrary arrests, detentions, trials and deportation to Afghanistan. Those arrested include Afghans who have been sheltering in Pakistan for years and others who have recently sought refuge post 2021. Many were charged with illegal entry or stay under the Foreigners Act 1946.

Recent arrests have taken place in Karachi, the Sindh province. In less than a week since September 9, 2023, 540 refugees living in Karachi were reported to have been arrested. The Governor of Sindh Kamran Tessori approved of these arrests with the following statement, “The government has directed law enforcement agencies to arrest Afghans living illegally in Sindh and elsewhere in the country.”

Reports of arrests from other parts of Pakistan have also emerged, with approximately 600 Afghan refugees arrested in Islamabad and hundreds more in Balochistan. The arrests were defended by the caretaker Prime Minister of Pakistan, Anwaarul Haq Kakar, who asserted, “We will push the [Afghan] aliens back to their country, and no one without the visa regime will be allowed to live here.”

Following this, caretaker interior minister Sarfraz Bugti announced the crackdown order on “illegal” Afghans stating, “If they do not go… then all the law enforcement agencies in the provinces or federal government will be utilised to deport them.” He also announced a task force aimed at identifying and confiscating private businesses and assets of ‘illegal’ Afghans in the country.

The sad reality is that such a crackdown on Afghan refugees is not new. From time to time, there have been waves of arrests and detentions, which have made the lives of Afghan refugees in Pakistan insecure and destitute. Recently, this is not only being done to Afghans with no proof of entry or stay in Pakistan, but also to hundreds of Afghan refugees who hold one or another form of verified identity i.e. the Proof of Registration (POR) cards issued by the UNHCR, or the Afghan Citizens Card (ACC) issued by the Government of Pakistan, or the holding certificates of asylum provided by the UNHCR.

It is true that these identity cards or certificates issued to Afghan refugees, in some cases, may have expired, but this is not out of their own fault. It has now been an established practice that the government extends these cards near or after the expiry dates.

Since getting thousands of cards extended is a huge administrative challenge, for the last several years, the Ministry of States and Frontier Regions (SAFRON) would issue a public order demanding the police not to harass or arrest Afghans until a decision is reached by the federal government to allow or disallow further extensions to their identity cards. Such an order was recently issued on June 20, 2023.

SPIRIT OF THE LAW

However, despite this, the arrests, detentions and deportations have continued. The Human Rights Commission of Pakistan (HRCP) and Amnesty International, among several other human rights groups, have issued statements in support of the vulnerable Afghans and have urged the government to consider signing the 1951 Refugee Convention and its 1967 Protocol.

HRCP has also called on the government to reverse its recent decision to deport ‘illegal’ Afghans and to respect its obligations under international human rights law.

It appears from the foregoing that there is an ever-widening gap between the letter and spirit of the law, as limited as it is, in the absence of a national or international legal framework. Even the simple directive issued from the Ministry of SAFRON is not being adhered with.

What resides in this gap is political exigency.

Afghan refugees and migrants have forever been treated as political pawns in the hands of the sitting governments and the army establishment in Pakistan. In the last 43 years, Afghan refugees have been welcomed as muhajirs and mujahids against the Soviets during the 1980s, and they have been deported and/or repatriated to Afghanistan (voluntarily) in various phases, depending on how amiable or not Pakistan-Afghanistan bilateral relations were, and how much support Pakistan was able to negotiate from international donors to host and manage Afghan refugees inside its territory.

It has also been observed by human rights groups that the various phases of voluntary repatriation of Afghans from Pakistan have not actually been voluntary. Many were pressured to leave Pakistan by making their living conditions untenable and insecure. An environment of fear and hostility is often created to force many Afghan refugees out.

According to Human Rights Watch (HRW), many Afghan refugees signed up for repatriation not because they thought it was safe to return, but because they believed they had no choice in the matter. And since repatriation must be a voluntary choice, many who choose not to return to Afghanistan, have an ambiguous legal status and therefore are at a greater risk of harassment and arrest.

Moreover, there has been a historical narrative of anti-Afghan hostility amongst the ‘settled’ Pakistani communities. On various occasions, Afghan refugees have been labelled as ‘dangerous foreigners’ who bring risk and insecurity to Pakistan. This narrative is periodically repeated as and when politics necessitates. There’s sufficient evidence to suggest, however, that most of the Afghan migrants are vulnerable refugees looking for safety from persecution and protection from the harsh living conditions in perpetually war-affected Afghanistan.

Politics aside, the management of refugees is also an administrative challenge for Pakistan, a country struggling to balance its economic priorities, threats to internal security, and international humanitarian obligations.

According to the UNHCR figures, Pakistan is currently hosting 3.7 million Afghan refugees, out of whom 1.33 million are registered with the UNHCR and possess POR cards as their refugee identity, 840,000 hold ACCs issued by the Government of Pakistan, 775,000 are undocumented, and 600,000 are new arrivals since the withdrawal of the US and its allied forces from Afghanistan in August 2021. Unofficial figures suggest an even greater number of Afghans living in Pakistan in all these categories.

WHERE THERE’S A WILL…

The scope of the challenge at hand is enormous and multilayered. It most certainly requires a solution that is political, administrative and legal. But perhaps a ‘not all at once’ approach should be desired for the simple reason that this may never happen.

What is plausible is for the law to chart a process-oriented pathway to help lift the sufferings of thousands of Afghan refugees currently sheltering in Pakistan. The IHC judgement is a step in this direction. Another legal discussion that ought to happen is on the Citizenship Act of Pakistan 1951, where there’s a possibility to consider citizenship for Afghans born in Pakistan in the last four decades.

Last, but by no means least, a national legal framework on governing refugees and asylum seekers is a much-awaited development for which there’s a National Refugee Bill pending discussion in the National Assembly of Pakistan.

The National Refugee Bill 2023 was introduced in the parliament in March 2023 as a Private Members Bill by Mohsin Dawar, member of the National Assembly and the chairman of the Standing Committee on Foreign Affairs. The bill calls for recognising the right to seek and enjoy refugee status in Pakistan and to regulate the legal status of refugees. The bill also proposes to establish a Refugee Commission under the Ministry of SAFRON and to appoint a refugee commissioner.

The politics of refugee governance is likely to take time. But judgments, such as the one discussed here, make the courts a significant site where the refugee law could be developed domestically yet informed by the international norms of refugee protection.

Until now, the principle of non-refoulement as the principle of customary international law and as enshrined in ICCPR and CAT, has been the key source for case law on refugees. With the IHC judgment, Pakistan has engaged with Article 31 of the 1951 Refugee Convention for the first time. In doing so, it has shown how, by incorporating the principles of the Refugee Convention, a generous and considerate reading of the Foreigners Act of 1946 is possible.

The writer is a postdoctoral research fellow at the University of Oslo, Norway. Her research examines the socio-legal and political landscape of Pakistan’s refugee protection regime. She is a member of the BEYOND research project on non-signatory states to the Refugee Convention, 1951. She can be reached via email at a.b.kazmi@jus.uio.no, X: @kazmi_arjumand