The Peshawar High Court, in several judgments since August 2023, has directed the NADRA to consider the applications of Afghan refugees married to Pakistanis for the grant of citizenship under the Citizenship Act, 1951.

The legal status of Afghan refugees falls into three broad categories: those who possess a Proof of Registration card, those who have retained an Afghan Citizen Card and those who carry no documents.

The recent deportation of some undocumented Afghans has raised several questions. One of those is about undocumented refugees married to Pakistanis.

The Pakistan Citizenship Act, 1951, and Naturalisation Act, 1926, govern the acquisition of Pakistani citizenship. The procedures are outlined in the Pakistan Citizenship Rules, 1952, and the Naturalisation Rules, 1961. Afghan refugees, particularly those born in Pakistan and married to Pakistani citizens, or those who have been in the country for long and have no intention of returning to Afghanistan, may be affected by these laws.

Citizenship can be gained through birth, descent, naturalisation or marriage. According to Section 4 of the Pakistan Citizenship Act, everyone born in Pakistan after the commencement of the Act is a citizen of Pakistan by birth. Section 5 states that subject to the provision of Section 3, a person born after the commencement of this Act is a citizen of Pakistan by descent if his parents were citizens of Pakistan at the time of his birth.

While the Act makes no specific mention of Afghan refugees, Pakistani courts have ruled in the past that the Afghan refugees are to be regarded as temporary residents and are barred from acquiring citizenship. This also applies to the children of diplomats and other foreigners on work or business visas in Pakistan.

Naturalisation is a method of acquiring citizenship through long-term residence in Pakistan. According to Section 3 of the Naturalisation Act and Section 9 of the Pakistan Citizenship Act, a person who has lived in Pakistan for five years in the previous eight, including the 12 months preceding the application, may obtain citizenship if they are of good character, can demonstrate knowledge of a local language and declare an intention to reside in Pakistan permanently. However, this, too, is a discretionary process that has not been used to grant citizenship to Afghan refugees who otherwise meet the criteria.

When it comes to marriage, the situation is discriminatory. The Citizenship Act states that a woman may obtain citizenship through marriage to a Pakistani man, but it does not mention a similar provision for a man. This omission is a violation of both Pakistan’s constitution and its international obligation under the Convention on the Elimination of Discrimination Against Women. This provision of the Citizenship Act was upheld by the Lahore High Court in 1998. However, the Federal Shariat Court declared it un-Islamic and a violation of the constitution.

A woman who is not a citizen of Pakistan but marries a Pakistani man is entitled to Pakistani citizenship under Section 10 of the Pakistan Citizenship Act 1951. Section 10(2) states that a woman who has been married to a citizen of Pakistan or to a person who would have been a citizen of Pakistan but for his death under Sections 3, 4, or 5 shall be entitled on making an application to the federal government. A female married to a Pakistani national may thus apply for Pakistani citizenship in the form and manner prescribed in Rule 15 of the Pakistan Citizenship Rules of 1952, even if her husband died before her filing of such an application.

However, when a Pakistani woman marries a foreign national, her husband cannot similarly acquire citizenship. It has been argued that this leaves the woman and her children in a precarious position.

In 2006, this provision was challenged by the FSC, which took suo motu notice of the issue and ruled that the situation was discriminatory, in violation of Articles 2-A and 25 of the constitution and international commitments and violated Islamic injunctions. In its judgment issued in 2007, the court urged the president to take suitable steps for an amendment to relevant Section 10 (2) and other related provisions of the PCA 1951 within a period of six months.

During the hearing of this case, the Ministry of Law submitted the reasoning behind this bar, stating that apart from social and economic implications, the provision could be used by a foreign country to plant their agents in Pakistan because the foreign husband, after marrying a Pakistani lady and obtaining Pakistan nationality, would be free to divorce her and move freely in Pakistan. The FSC, however, dismissed these fears, stating that the grant of nationality would still be within the domain of government discretion and may be refuse for reasons of national security or public interest.

Although, in 2008 the Federal Shariat Court passed the judgment, the desired amendment in law has not been made and a foreign husband still cannot acquire citizenship by way of marriage to a Pakistani woman.

The writer is an advocate of high court, a founding partner at Lex Mercatoria and a visiting teacher at Bahria University’s Law Department