Pak law recognises right to asylum: IHC

Allowing a petition of an Afghan female Hazara soldier, who saved her life by fleeing to Pakistan after the Taliban takeover in neighbouring Afghanistan, the Islamabad High Court (IHC) has declared that asylum-seeker “can’t be incarcerated as Pakistani law recognises the right to asylum”.

The 21-page judgment of IHC’s Justice Babar Sattar on a petition of Rahil Azizi, who belonged to Afghanistan’s Shia minority group known as Hazaras and built a career for herself working as Lance Corporal in the Afghan National Government for over five years, represents the most crucial judicial pronouncement on the issue or the right to asylum in Pakistani jurisprudence.

The petitioner, through her counsel Barrister Umer Ijaz Gilani, had called upon the court to decide “whether once an individual enters into Pakistan without a visa for fearing his/her life and liberty is his/her fate sealed as far as the offence under Section 14(2) of the Foreigners Act?”

Justice Sattar replied: “The answer cannot possibly be in the affirmative in any civilised country… the refugee must not be kept incarcerated like an under-trial prisoner…”

The court clarified that “a purposive interpretation of the Foreigners Act presents it as a statute meant to regulate [the] entry and exit of foreigners and not to punish anyone who manages to escape from their own country to Pakistan to save their lives”.

At a time when the caretaker government has started a crackdown against the illegal immigrants, especially the Afghans, and it’s all set to announce price money for sharing information about them, the IHC judgment has provided much-needed protection to people fleeing from their homelands to save their lives.

The interior ministry recently said that action against foreigners residing illegally was being taken and 57 people have so far been arrested under the Foreigners Act of 1946 and transferred them to Adiala Jail.

“Arrangements are being made to repatriate the detained foreigners,” it added. Interim Interior Minister Sarfaraz Bugti had announced the other day that no one would be allowed to live illegally in Pakistan, saying staying in Pakistan is possible only as per the laws of the country and action is also being taken against Pakistanis who support illegal residents.

Azizi’s professional and personal life had come tumbling down when the Taliban took over in August 2021.

Like many others working for the toppled government, especially soldiers, single women and those belonging to religious minorities, she feared for her life. She fled to Pakistan in a rush and had no occasion to seek a visa.

Once in Islamabad, she voluntarily surrendered herself to Aabpara Police Station and narrated her story. Initially, she was sent to Dar-ul-Aman, a shelter home for women; however, later, upon the instructions of one of Islamabad’s assistant commissioners, the Federal Investigation Agency booked her under section 14(2) of the Foreigners Act of 1946, a provision of law which criminalizes illegal entry and stay in Pakistan.

The subsequent criminal proceedings landed her in Adiala jail where she remained for nine months. As someone who could speak only Dari and no Urdu or English, this was traumatic period of her life. Finally, with the help of some intervention by The United Nations High Commissioner for Refugees (UNHCR) Pakistan, she was bailed out by IHC and placed under the custody of the Secretary Interior and the supervision of the UNHCR.

Barrister Gilani said that Azizi’s prospects improved when her asylum application was approved by the UNHCR. After considerable scrutiny into her case, Gilani shared, UNHCR came to the conclusion that that Azizi was an individual who “might face serious harm in case of return to her country of nationality”.

Gilani said that UNHCR also helped her get a humanitarian visa from Australia. Yet, he said, she couldn't leave Pakistan in order to build a new life in Australia because the Ministry of Interior wasn’t granting her an exit permit on grounds of ongoing prosecution against her under section 14 the Foreigners Act 1946.

Subsequently, Gilani said, Azizi approached the court of magistrate and after that the sessions court seeking summary acquittal. However, he adds, neither of the proceedings succeeded. Finally, he said, she approached IHC where she succeeded.

Through judgment, Justice Sattar has quashed the prosecution against Azizi and directed interior ministry to promptly grant her an exit permit. The short order was announced in June but the detailed reasoning has just come out.

In its detailed judgment, the court has noted that there were no grounds left for prosecuting Azizi after her asylum application had been recognized by UNHCR. This is especially so, since the government of Pakistan relies on the UNHCR as a proxy to determine the genuineness of refugee applications.

The court held: “…the Constitution guarantees the right to liberty as well as the right to dignity of every person who for the time being is in Pakistan under Articles 9 and 14.”

Considering the petitioner's status as a legitimate asylum seeker, Gilani shared, her rights to liberty and dignity were infringed by the Ministry of Interior.

The judgment noted that given the status of the petitioner as a legitimate asylum seeker as confirmed by interior ministry, fettering her rights to liberty and dignity by confining her in a penitentiary is illegal. Gilani argued that in any case under Section 14(2) of the Foreigners Act, establishing criminal intent or mens rea through evidence must be considered a prerequisite.

The text of Section 14(2) itself emphasizes the element of “knowingly” committing the illegality: “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.”

Gilani argued that this mens rea cannot be established against someone like Azizi who clearly came to Pakistan without a visa, only to save her life. Saving one’s life can obviously not be considered an illegal intent because the Constitution itself guarantees the right to life to all people, including foreigners who are for the time being in Pakistan.

Accepting the argument, the Court held: “Section 14(2) of the Foreigners Act cannot be treated as a strict liability offence where culpability stands established notwithstanding guilty intent and notwithstanding the circumstances that forced the alien to enter Pakistan… The law is not meant to act as a trap.”

The court further held: "Section 14(2) of the Foreigners Act is to be read together with Article 4, 9, 10-A and 14 of the Constitution, while also taking into account the entrenched principles of international law that recognize the right of refugees to safety, to not be treated as criminals, and to seek asylum in a foreign country.

That Pakistan does not have its own national legal framework for refugees does not mean that anyone seeking refuge out of fear for his/her life or liberty must do so at the cost of being imprisoned for a term prescribed under Section 14(2) of the Foreigners Act...”

In judgment, the IHC has relied heavily on an earlier judgment of the Sindh High Court in the case of Turkish teachers. In that judgement, authored by Justice Munib Akhtar, the SHC held: “Pakistan generally accepts UNHCR decisions to grant refugee status and allows asylum-seekers (who are still undergoing the procedure) as well as recognized refugees to remain in Pakistan pending identification of a durable solution.”

“This is the most detailed judicial pronouncement on the right to asylum in Pakistani law and represents a historic victory for refugee rights,” Gilani concluded. In addition to Pakistani constitutional law, he adds, it relies heavily on Pakistan’s treaty obligations under the ICCPR and Convention against Torture, as well as international customary law, all of which uphold the principle of non-refoulement.

It held: “Although Pakistan is not a signatory to the 1951 Refugee Convention, the principles enshrined in it are relevant. This makes Article 31 of the Refugee Convention a useful lens to view Section 14, articles 4, 9 and 14 of the Constitution…”