Verified refugees shouldn’t be jailed: IHC

The Islamabad High Court (IHC) has asked the federal government to establish a mechanism in accordance with Article 31 of the Refugee Convention, 1951.

This mechanism should enable refugees to voluntarily report upon arrival in Pakistan that they seek refuge and wish to register with the United Nations High Commissioner for Refugees (UNHCR) to seek asylum in a third country.

“It must also be noted that in a case where the state has initially registered an FIR [First Information Report] under the Foreigners Act, [1946] but has subsequently verified through the instrumentality of [the] UNHCR that the foreigner in question is a bona fide and legitimate refugee seeking asylum in a third country, the state is not a hapless bystander.

“Upon verification of the refugee status of a foreigner by [the] UNCHR, the refugee must not be kept incarcerated like an under trial prisoner,” said a 21-page order authored by IHC judge Babar Sattar.
An Afghan woman, Rahil Azizi, had moved the IHC against registration of a FIR against her under the Foreigners Act, 1946 for entering Pakistan without a visa.

The IHC quashed the FIR against Rahil, noting that the Constitution grants the right of asylum. It instructed the Ministry of Interior to issue a no-objection certificate (NOC) to the Afghan woman for traveling to Australia, which has issued a visa to her.

The court asked the government to make arrangements to lodge refugees independently or in association with the UNHCR so that until recognition of their refugee status and decision on asylum applications, such refugees are not locked up in prisons.

“The government must also frame SOPs [Standard Operating Procedures] to direct police authorities to release an accused refugee [booked] under Section 169 of CrPC [Code of Criminal Procedure]…
“Or [it should] file an appropriate report under Section 173 of CrPC or file an appropriate application under Section 494 of CrPC forthwith to withdraw from the prosecution of the foreigner, depending on the stage in the case in question, once the refugee status of the foreigner has been recognized by UNHCR and his application for grant of asylum is under process or has been approved.

“This will ensure that a foreigner seeking refuge is not unnecessarily charged, and where the charge has been framed, such foreigner can be acquitted in respect of any offence under the Foreigners Act, [1946] that he/she has been charged with.”

It said the Ministry of Interior can issue an appropriate exit permit to enable such foreigners to travel to the country that has granted them asylum.

“Facilitating the settlement of a refugee in a third country would not just burnish the credentials of Pakistan as a polity that understands the plight of refugees, given that it has shouldered the burden of refugee settlement from neighboring countries.

“It would also be a sensible public policy choice to reduce litigation and prevent further burdening of the criminal justice system with unnecessary trials,” the verdict said.

Rahil Azizi claimed that she was working for the Afghan police for five years under the erstwhile Afghan National Government. In August 2021, the Kabul administration fell and the Taliban wrested back control of Afghanistan and formed a new government.

Many civilians as well as officials working with law enforcement agencies under the previous government feared for their lives due to regime change in the aftermath of a violent civil war.

To save her life, Rahil escaped to Pakistan by crossing the border. She, however, did not have a visa to enter Pakistan and had no time to seek one, given the security situation in Afghanistan in August 2021.
Rahil approached the police in Islamabad and narrated her story.

She was produced before Potohar Assistant Commissioner and was initially sent to a darul amaan.

Subsequently, the Federal Investigation Agency (FIA) registered an FIR against her for an offence under Section 14(2) of the Foreigners Act, 1946and sent her to Adiala Jail.