The legal status of afghan refugees in Pakistan


Javeed Khan

Javeed Khan

Pakistan is hosting one of the world largest refugee population since 1980s. although Pakistan is not a signatory of the 1951 convention relating to the status of refugees but despite that Pakistan is hosting such a large number of refugees on its soil. Since 1980 many people are of the view that due to the presence of afghan refugees in Pakistan the security situation is going to deteriorated day by day. After the incident of 9/11 the stay of afghan refugees in Pakistan got burning issue. Some of the people are of the view that voluntarily repatriate these refugees as they lived here for more than three decades, some are of the view that kick out these refugees as we have no need of it because of their involvement in crimes, terrorism etc.Recently the Khyber Pakhtunkhwa government wrote a letter to the Federal government that not to extend the time of stay of refugees particularly in KP.

The population of afghan refugees living in Pakistan are of two kinds. According to UNHCR sources the total number of population of afghan refugees in Pakistan is about 3 million. About 1.5 million are those refugees who have been registered (PoR card) by NADRA while about the same numbers of refugees are those who are unregistered. As the 30 June 2016 is the last date for the Validity of POR card which was provided by NADRA to registered afghan refugees. So the issue of legal stay of these refugees will get worse as of police arrest and harassment. However, the issue of those unregistered Afghanrefugees is of more complex and worse.

Universally the 1951 convention relating to the status of refuges and two additional protocols of 1967 provide a legal protection and base for these vulnerable people of the world. According to section 1 (A)2of the refugee convention 1951 a refugee have been defined as “Any person who is 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 nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Now the question is what is the status of these afghan refugees keeping in view the principles of international refugee law whether they are registered refugees or unregistered.

aAlthough Pakistan is not signatory of the refugee convention despite that Pakistan provided protection and assistance to these refugeeskeeping in view other international legal instrument including UDHR, ICCPR, ICESCR etc. It is obligatory for Pakistan to provide protection to these vulnerable people of the society.  Article 30 to 33 of convention relating to the status of refugees 1951 deals with the refugees as Article 31 is of about unlawfully 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 Article31, The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of 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 that The Contracting States 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 life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Pakistan dealt the unregistered afghan refugees under Pakistan foreign act 1946 (Amended). Section 14 Of Foreign Act deals with unregistered (person having no legal documents) persons on the land of Pakistan. So any one who is not registered will be punished under section 14 of the said foreign act.

As the issue was related to a large number of people in the shape of refugees living in Pakistan therefore firsttimethe government of Pakistan, Afghanistan and UNHCR entered into a tripartite agreement in March 2003 which established a formal process for resolving the 23-year-old Afghan refugee problem 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 who among the remaining Afghan population were still in need of protection and continued refugee status. Then this tripartite agreement was renewed in 2007 for 2 years till 2009. Themeeting of this tripartite commission continued from time to time till now to solve the issue of refugees.

On the recommendation made under this tripartite agreement Pakistan extended the duration of stay of afghan refugees in Pakistan. It is worth to mentioned here that Pakistan extended the stay of afghan refugees in Pakistan till 31 December 2016.

However, it is also noteworthy that the stay of afghanrefugeesin Pakistan is more, social, cultural, historical, ethical, political and not of legal nature. As Pakistan is the neighbouring country and had a longest border with Afghanistan of 2250 km.

So the legal points which are very important to view is that Pakistan is providing protection to afghan refugees because of article 33 of the refugee convention which described the principle of non-refoulement. And this principle is recognized by under international customary law which is of binding nature. Similarly, Pakistan have ratified various international legal treaties including Bill of rights, CEDAW, UNCAT etc. so therefore Pakistan is under obligation to help and support these refugees. For those who are unregistered and have no legal documents and stayed in Pakistan, the state lawhas no sympathy for that and they are directly dealt by 14 foreign act of Pakistan. Under the Foreign act these Illegal stayee are punished and deported to their country of origin.

The current wave of tension between Pakistanand Afghanistan have adversely affected the life of afghan refugees living in Pakistan. The police and LEAs badly harassed these refugees by asking documents. A large numbers of police harassment and illegal arrest/detention of these refuges are reported. The view is that the stay of these afghan refugees should be dealt in the eye of law, humanity and not of moral, political or ethicalvalues.