The Legality Of Forced Deportation Of Afghans In The Context Of Refugee Law

Except for the Foreigners Act of 1946, Pakistan does not have any proper domestic legislative framework governing the issues of refugees.

The Legality Of Forced Deportation Of Afghans In The Context Of Refugee Law

In the preceding month, the caretaker government of Pakistan announced that all illegal immigrants, the majority of whom are Afghans, must leave the country by November 1. The decision came after the interior minister, Mr. Sarfaraz Bugti, alleged that the rise in terrorist incidents has its roots in Afghanistan and illegal migrants residing in Pakistan. Hundreds of people have already been arrested under the disguise of undocumented Afghans. The move is being criticized as draconian and a violation of principles of international law as no one can be subjected to leave for a country where they may be persecuted. 

The Soviet-Afghan war in 1979 saw the first major influx of Afghan refugees into Pakistan. Around three million Afghans migrated to Pakistan at that time. Afterward, the US invasion of Afghanistan also stimulated some citizens to flee. Recently, after the fall of Kabul to the Taliban, around 0.6 million Afghans fled to Pakistan. Currently, Pakistan houses 1.7 million unregistered Afghans which it plans to deport.

Refugees and International law

The Universal Declaration of Human Rights (UDHR) protects the rights of refugees in Article 14. It states that “everyone has the right to seek and to enjoy in other countries asylum from persecution”.

The 1951 Convention relating to the Status of Refugees along with its 1967 protocol is the main document under international refugee law that governs the rights and duties of the refugees. Pakistan has not formally ratified the convention; however, certain parts of the convention fall under the domain of customary international law, and hence, serve as directive principles for even non-parties of the convention. 

The principle of non-refoulement prohibits the States from repatriating refugees back to their home States if their lives or freedom would be at risk (Article 33 of the Convention). This principle of international law is deemed to have customary status and is therefore binding on all States regardless of whether they are signatories to the Convention. 

Unlike the Refugee Convention, Pakistan is a State party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT). The ICCPR protects individuals from discrimination (Article 2) and also grants the right to leave any country (Article 12). Moreover, Article 3 of the CAT encapsulates a similar non-refoulement principle and restricts States from returning a person where he may be subjected to torture. As the Taliban regime is infamous for human rights violations and torture, it would be unlawful for Pakistan to forcefully expel Afghan immigrants in this scenario.

Domestic Legislation

Except for the Foreigners Act of 1946, Pakistan does not have any proper domestic legislative framework governing the issues of refugees. Ironically, the word refugee is not even mentioned in the Act.

The Act substantially criminalises illegal entry into Pakistan regardless of the circumstances or even for life-saving. In March 2023, the National Refugee Bill was introduced in the Parliament as a private members bill. The bill can be a step ahead in recognising and protecting the rights of refugees in the country.

Rulings of Superior Courts

Superior courts of Pakistan have at times preserved the rights of refugees or asylum seekers and reiterated the need for a comprehensive policy on the issue of refugees. In Fazal Haq v NADRA and Others, the petitioner, a Pakistani-born Afghan national, requested citizenship and the court in its order directed the interior ministry to award citizenship to the 24-year-old petitioner.

In the case of Amir Aman v Federation of Pakistan (PLD 2020 Sindh 533), the government was trying to deport the Pak-Turk schools’ teachers by refusing the renewal of visas. In its judgment, the High Court granted a stay against deportation until such time that the asylum applications were not decided by the United Nations High Commissioner for Refugees (UNHCR). The court in its obiter dicta (non-binding comment) remarked ‘Foreigners though they may be, may have grown up here and become so attuned to local rhythms and manners that back in the home country, they may well feel like strangers in a strange land. Now abruptly, he and his family are being shown the door’. 

In another landmark decision titled Hafiz Hamdullah Saboor v Government of Pakistan (PLD 2021 Islamabad 305), the court highlighted the importance of the right to citizenship. Citizenship is nothing less than the right to have rights. The court asserted that citizenship is the most valuable basic right of a human. All other rights whether social or political, cannot be enjoyed if a person does not have a bond of citizenship with a State. Moreover, the court restored the CNIC alias citizenship of the petitioner. 

Recommendations and Conclusion

In Rahil Azizi v The State and others, the court comprehensively addressed the issue of refugees. It remarked that where municipal law leads to an outcome that contradicts international obligations, it should be interpreted in a manner that upholds those obligations. The court discussed at length, the recommendations for the protection of refugees in the country. Firstly, a refugee must be registered with UNHCR on its arrival. Secondly, proper arrangements for accommodation must be made either independently or in association with UNHCR. Lastly, the foreigner must be acquitted of the charge under the Foreigners Act when an application for a grant of asylum is under process or has been approved by the UNHCR.

In a nutshell, Pakistan needs comprehensive legislation on the matter of refugees. It must not unilaterally expel the Afghan immigrants without paying any heed to the persecution they may face under the Taliban government. It is not entirely the fault of Afghans that they are undocumented but the responsibility also lies on the shoulders of the State why it did not devise any policy or framework for the refugees for approximately four decades. It is high time for Pakistan to ratify the Refugee Convention and work in consonance with international legal obligations.