The Legal Status Of Afghan Refugees In Pakistan

The Legal Status Of Afghan Refugees In Pakistan

Pakistan is hosting one of the world’s largest refugee populations since the 1980s, the Afghan refugees. Although Pakistan is not a signatory to the 1951 Convention Relating to the Status of Refugees, it still has a huge number of refugees on its soil. Several people have highlighted that due to the presence of Afghan refugees in Pakistan the security situation is deteriorating day by day. After the incident of 9/11, Afghan refugees in Pakistan have been the subject matter of intense debate. Some people are of the view that the refugees should be voluntarily repatriated as they have lived here for more than three decades. On the other hand, the rest believe that refugees should be kicked out as there exists a fear of their involvement in crimes and terrorist activities. Recently, the Khyber Pakhtunkhwa government wrote a letter to the federal government pleading to not extend the length of stay of refugees, particularly in Khyber Pakhtunkhwa.

The population of Afghan refugees living in Pakistan can be divided into two kinds. According to the office of United Nations High Commissioner for Refugees (UNHCR) sources, the total population of Afghan refugees in Pakistan is approximately 3 million. About 1.5 million are those refugees who have been registered ( issued Proof of Registration POR cards) by the National Database and Registration Authority (NADRA), while around the same number of refugees are those who are still unregistered. The last date for registering for POR cards by Afghan refugees was 30th June 2016, which was provided by NADRA. After the passing of the deadline, the issue of legal stay is expected to worsen due to increased police arrest and harassment.

Universally the 1951 Convention Relating to the Status of Refugees and the two additional Protocols of 1967 provide legal protection for these vulnerable people. According to Article 1(a)(2) of the Refugee Convention 1951 a refugee has been defined as any person who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The underpinning question is regarding the status of the Afghan refugees keeping in mind the principles of international refugee law. Despite Pakistan not being a signatory to the Refugee Convention, it still provides adequate protection and assistance to these refugees, while conforming to other international legal instruments including Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). Thus it becomes obligatory for Pakistan to provide protection to refugees, safeguarding their basic human rights.

Article 31 of the 1951 Convention is about the unlawful stay in the country of refuge. Article 32 deals with expulsion of the refugees and Article 33 deals with prohibition of expulsion or return. According to Article 31, the contracting states shall not impose penalties on account of illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened (as enunciated under Article 1), enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Article 32, deals with the contracting states that they shall not expel a refugee lawfully in their territory save on grounds of national security or public order and in pursuance of a decision reached in accordance with the process of law.

Article 33 says that no contracting state shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.

Pakistan has dealt with the unregistered Afghan refugees under Pakistan Foreign (Amended) Act 1946Section 14 of the Foreign Act deals with the unregistered persons (persons having no legal documents) on the land of Pakistan. So anyone who is not registered will be punished under Section 14 of the Act.

As the issue related to a large number of refugees living in Pakistan, the governments of Pakistan and Afghanistan along with UNHCR, for the very first time entered into a tripartite agreement in March 2003, which established a formal process for resolving the 23-year-old Afghan refugee dispute in Pakistan at that time. Under the agreement, UNHCR was responsible to continue to assist the voluntary repatriation of Afghan refugees from Pakistan for three more years. The agreement was designed to support a gradual organized return that was sustainable. At the end of this process, a screening was to take place to determine as to who among the remaining Afghan population were still in need of protection and continued refugee status. Later on, the tripartite agreement was renewed in 2007 for 2 more years. The Commission continued to resolve the issues of refugees from time to time (to date). On a recommendation made under this tripartite agreement, Pakistan extended the duration of stay of Afghan refugees in Pakistan. It is worth mentioning here that Pakistan has extended the stay of Afghan refugees in Pakistan till 31st December 2016.

However, it is also noteworthy that the stay of Afghan refugees in Pakistan is more of a social, cultural, historical, ethical and political nature and not that of a legal one. Moreover, Pakistan and Afghanistan are neighbours, sharing a physical border.

Thus the legal points important to be viewed here are that Pakistan is providing protection to Afghan refugees despite not being signatory to the 1951 Convention. Such an obligation may also recognized under international customary law. Similarly, Pakistan has ratified various international legal treaties including the Bill of Rights, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Convention against Torture (UNCAT), etc. Therefore Pakistan is under an obligation to help and support these refugees. For those who are unregistered (having no legal documents and still staying in Pakistan), the law of the land has no sympathy for them and they are dealt with directly under Section 14 of the Foreign Act, under which they shall be held in violation of the law and consequently deported to their country of origin.

The current wave of tension between Pakistan and Afghanistan has adversely affected the lives of Afghan refugees living in Pakistan. In numerous reports, it has been shown that the police and law enforcement agencies are harassing and illegally arresting and detaining these refugees. The view taken is that the stay of these Afghan refugees should be dealt with in the eyes of law and humanity and not under other moral, political or ethical values.

The views expressed in this article are those of the author and do not necessarily represent the views of or any other organization with which he might be associated.

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Javed Khan

Author: Javed Khan

The writer hails from FATA and holds an LL.M degree in International Law and MA Political Science from the University of Peshawar. His areas of expertise include human rights, humanitarian law and social cohesion. He has worked with many national and international organizations including UNHCR, IRC and NRC on legal aid, legal assistance and the protection of human rights. He has also completed a B.Ed. diploma course in Islamic Law from IIU Islamabad and a certificate course on International Human Rights Law from the Human Rights Studies Department at the Law College, University of Peshawar.


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