oes the Pakistani law recognise a right to asylum? In the absence of a national framework for recognition of refugees and grant of asylum, what is the relevant law for such determination? Is the fate of an individual who enters Pakistan without a visa for fear of life and liberty sealed under the Foreigners Act?

The Islamabad High Court was recently asked to rule on these issues while deciding the fate of an Afghan citizen who had escaped to Pakistan following a crackdown launched in Afghanistan by the Taliban following the regime change. In his verdict, Justice Babar Sattar, recogniaing a right to asylum, held that there was no evidence to establish that the petitioner had knowingly and illegally entered Pakistan.

Section 14(2) of the Act provides: “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 10 years, and fine which may extend to 10,000 rupees.”

A perusal of this provision clearly requires that any person who ‘knowingly’ enters into Pakistan illegally will meet the required threshold for a successful conviction.

The judgment, very aptly, states that Section 14(2) of the FA cannot be treated as a strict liability offence as the legislative intent behind the Act is not to punish individuals. Rather, it prescribes a procedure regulating entry and exit from Pakistan for foreigners and to deter those who enter Pakistan without seeking prior permission, for illegal purposes.

To interpret Section 14(2) of the Act expansively, the IHC relied on the principle of non-refoulement enshrined in Article 31 of the 1951 Convention relating to the Status of Refugees, reading it with the UN Convention against Torture, the International Covenant on Civil and Political Rights, and the tripartite agreement between Pakistan, Afghanistan and the United Nations High Commissioner for Refugees.

The court took into account the entrenched principles of international law that recognise the refugees’ right to safety, to not be treated as criminals and to seek asylum in a foreign country. Importantly, it held that the absence of a national framework for refugees does not prevent a person from seeking refuge out of fear for their life or liberty.

It would be naïve to expect that one judgment of the Islamabad High Court alone will suffice to remedy and redress the persecution faced by refugees and asylum seekers.

Justice Sattar’s judgment represents a crucial judicial pronouncement on the right to asylum in Pakistani jurisprudence. At the same time, it unveils the plight of most asylum seekers and refugees who are not entitled to citizenship and suffer from rampant persecution and human rights abuse at the hands of the state authorities.

According to a report by European Union Agency for Asylum, titled Pakistan Situation of Afghan Refugees, police harassment of Afghan refugees remains an overarching issue. Between December 2019 and March 2021, police harassment of Afghans in Pakistan appeared quite pervasive and included extortion, corruption and violence. Despite the worsening humanitarian situation in Afghanistan, the Pakistani government has decided to launch a crackdown on Afghan refugees, adding a string of new movement restrictions on top of a wave of detentions and deportations.

Despite hosting one of the world’s largest displaced populations i.e. Afghans, for the past 35 years, Pakistan is neither a signatory to the 1951 Convention relating to the Status of Refugees nor its 1967 Protocol. In their absence, the Foreigners Act is the primarily law which governs the Afghans and their entry into Pakistan. The Act, apart from failing to define what constitutes a “refugee” or an “asylum seeker,” falls short of meeting the minimum international human rights standards set out under the 1967 Protocol as well as other conventions ratified by Pakistan. It confers unfettered discretion to the police authorities to use force as may be ‘necessary’ for securing compliance with any order made or direction given or for prevention of any breach of such order.

In his order, Justice Sattar directed the federal government to prescribe a mechanism that complies with the principle of non-refoulement to enable refugees to voluntarily report upon arrival in Pakistan that they seek refuge and wish to register with the UNHCR to seek asylum in a third country. It would be naïve to expect that one judgment of the Islamabad High Court alone will suffice to remedy and redress the persecution faced by refugees and asylum seekers. However, as a starting point, the government’s implementation of the verdict, to ensure that all law enforcement agencies treat Afghans living in Pakistan with dignity and respect for their basic human rights in compliance with domestic and international law, will certainly be a significant step towards formulating a viable legal framework.

The writer is a practising lawyer based in Lahore. He may be reached at umer.ranjha@axislaw.pk