Illegal immigrants have rights too

On December 29, an Associated Press report about Afghan refugees said that: “Pakistani police in multiple raids detained at least 1,200 Afghan nationals, including women and children, who had entered the southern port city of Karachi without valid travel documents…..the arrests brought criticism from around Afghanistan after images of locked up Afghan children were circulated online.”

Initially, the Sindh government denied any such treatment but later retracted one of their statements only to revert to another form of denial of the treatment to jailed refugee children. The reality however is that the women and children are behind bars.

Pakistan’s National Commission on Human Rights in a recent report says: “(a)t least 139 Afghan women and 165 children are among those being held at a high-security jail in Karachi”. The report was based on interviews with scores of imprisoned Afghan detainees. However, it covered children under nine years and kept with their mothers, while children from 10 to 18 are being kept in a juvenile jail and facing charges under the Foreigners Act which is against the international protection standards for refugees.

Interestingly in Sindh media Afghans appear as an influx aimed at demographically undermining the Sindhi population while the Pakistan government appeals for international help to support the same Afghan refugees in Sindh. We heard Pakistani Foreign Minister Bilawal Bhutto Zardari object to the Taliban regime banning women's education but it seems he is unaware of Afghan women and children refugees in Karachi jails.

Racial profiling of Afghans is not new, but the matter becomes more compounded by the laws relating to handling of foreigners in Pakistan. For example, arbitrariness is inherent in the Pakistan Foreigners Act 1946 as its sole purpose is to give powers to the federal government to act against immigrants. It says that the federal government may make provision to prohibit, regulate or restrict the entry of foreigners “into or their departure there from or their presence or continued presence therein.

International norms are however much more respectful to refugees. The Convention and Protocol Relating to the Status of Refugees is clear about the status of illegal immigrants as it provides that no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom. It goes on to state that: “… subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules.”

The Pakistan Foreigners Act 1946 is the main regulation used to arrest, jail, try and deport illegal immigrants. Its Section 14(2) is a common element in cases and in the jailing of Afghans. “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.” Section 14(B) empowers the federal government to deport an immigrant at any time.

While illegal refugees are in jails for years, Section 14C states: “A foreigner, having no permission to stay in Pakistan, who has been convicted and sentenced to imprisonment under this Act shall not be released on the expiry of the sentence and shall continue to remain in custody for a period not exceeding three months to enable arrangements for his deportation to be finalized.” The Afghan refugees who have been charged under 14 (ii) because of no or incomplete documents, have no remedy left except deportation as mentioned in 14(c) which is a clear violation of the international protocols for refugees.

While men have identification documents like cards or passports most women and children refugees labelled as illegal immigrants do not have any such documents and so cannot benefit from the existing law that in Section 14D states details about the registration of illegal immigrants

The Pakistan Crisis Response Plan 2020-22 is clear on the impact of refugees and how to deal with illegal immigrants from Afghanistan: “In terms of persons of concern in Pakistan’s context, who are largely Pakistani by nationality, the country hosts more than 1.4 million registered Afghan refugees, 840,000 Afghan Citizen Card holders, and approximately an additional 400,000 Undocumented Afghan nationals (source: Office of the Chief Commissionerate of Afghan Refugees). Given the government’s resource constraints, it is critical to cater to the needs of migrant population, particularly the Afghan Citizen Card holders and Undocumented Afghans.”

As a result, the US provides $48 million in aid for Afghan refugees in Pakistan for emergency cash, shelter, trauma care and essential health services, water, sanitation and hygiene assistance, protection and gender-based violence services etc.

On and off the international community appears to appreciate the humanitarian assistance by Pakistan. The UNHCR recognizes Pakistan’s historic role for refugees: “As the bedrock of the strategy, UNHCR will build on Pakistan’ s historic respect for refugee protection. Registration and asylum procedures will be supported and access to civil registration improved.”

But Pakistan’s response to refugees including illegal immigrants has not been as forthcoming as the UNHCR report suggests. ‘Foreign Policy’ reports that, while Pakistan has played an historic role in accommodating Afghan refugees, now after the Taliban takeover, it fears the cost of hosting refugees and hence the attitude is cold towards refugees of all kinds. “This attitude toward recent Afghan arrivals reflects the fears of a state burdened by the cost of hosting refugees and paranoid about its national security. Rights groups said Afghans are often scapegoated by the government and sections of the public in Pakistan’s fight against economic uncertainty and extremism.”

What could be the way forward? The first is to recognize that justice is a fundamental right for both citizens and illegal immigrants. International law ensures there is no discrimination in the dispensation of justice to immigrants of all kinds. To reform the conditions of Afghan refugees migrating from the terrible rule of the Taliban is first to stop ethnic prejudice in every province, including Sindh. Second, the government of Pakistan must review the country’s existing laws and modify them according to international standards governing migration policy where “(T)he system governing migration should allow migrants full access to justice, including redress and remedies if they experience human rights violations.”

The writer is a legal associate and human rights defender in Karachi. He can be reached at: samardotabbas@gmail.com