The legal status of Afghans
The writer is a Professor in Law at The University of Hull, UK and Barrister at Nexus Chambers, London
On the 3rd of October 2023, the Interior Minister called on all illegal immigrants to leave Pakistan by 1st November or face deportation. The statement was mainly directed at Afghans. The legal status of Afghans, commonly referred to as ‘refugees’, in Pakistan is often misunderstood. There are two types of refugees: mandate and convention refugees. Those recognised under the 1950 Statute of the United Nations High Commissioner for Refugees (UNHCR) are called mandate refugees. Those recognised by States parties to the 1951 United Nations Convention Relating the Status of Refugees and/or its 1967 Protocol are called convention refugees. Pakistan is not party to the Refugee Convention so it does not have convention refugees.
Afghans living in Pakistan falls in four broad categories: (a) prima facie refugees (b) mandate refugees (c) illegal entrants and (d) foreigners. Pakistan welcomed millions of Afghans on humanitarian grounds after the Saur revolution in April 1978. Thousands of Afghans were declared prima facie refugees. This is “the recognition by a State of refugee status on the basis of the readily apparent, objective circumstances in the country of origin giving rise to the exodus. Its purpose is to ensure admission to safety, protection from refoulement and basic humanitarian treatment to those patently in need of it” (UNHCR, EC/GC/01/4, 19 February 2001).
In 1993, UNHCR entered into a ‘Cooperation Agreement’ with Pakistan embodying “the basic conditions under which UNHCR shall, within its mandate, cooperate with the Government, open offices in the country, and carry out its international protection and humanitarian assistance functions in favour of refugees and other persons of its concern in [Pakistan]”. UNHCR has, under the 1993 agreement, also engaged civil society organisations as partners to assist in executing its mandate. UNHCR has since been providing protection/refugee status to individuals running from persecution from countries such as Afghanistan, Iran, Iraq, Somalia, etc. Those declared refugees under UNHCR’s mandate are called mandate refugees. Some Afghans falls in this second category.
Pakistan respects, as is required under the 1993 cooperation agreement, documents issued to mandate refugees by UNHCR and prime facie refugees. They are exempt from arrest, detention, prosecution and deportation. The customary international law principle of non-refoulment is also applicable to them. Those whose asylum applications are unsuccessful are granted a short grace period by UNHCR to leave or regularise their stay in Pakistan, failing which they become illegal entrants and fall in the third category of Afghans. The UNHCR-Pakistan cooperation agreement provides a good protection system as an alternative to the Refugee Convention protection system. It is a misperception that Pakistan does no framework for asylum seekers and refugees. There is but need for revitalisation and expansion combined with the training of the key actors of the justice system.
Afghans who are not prima facie or mandate refugees would need permission (i.e. visa) to stay in Pakistan as any Pakistani citizen would need a visa to enter and stay in Afghanistan. Those who obtain visa would be treated as foreigners and can stay in Pakistan under the terms of their visa. They fall in the fourth category of Afghans. There are 1.7 million Afghans who are not prima facie or mandate refugees or foreigners with valid Pakistani visa. To say that all Afghans in Pakistan are refugees and protected under the non-refoulment is too simplistic.
Sovereign nations are entitled to decide who enters, stays and leaves their territories. This right is usually reflected in the immigration and other laws dealing with foreigners. The 1971 Immigration Act in the UK is the principal law dealing with the entry, stay, detention and removal of people who do not have permission to enter and/or stay in the UK. In Pakistan, the 1946 Foreigners Act is one of the laws dealing with the “entry of foreigners into Pakistan, their presence therein and their departure”. Pakistan as a sovereign state is entitled to ask all illegal entrants to leave Pakistan. It is encouraging that illegal entrants are given a grace period to leave voluntarily. Those who fear persecution in Afghanistan must apply for asylum to UNHCR in its offices located in each province of Pakistan. UNHCR will issue documents preventing arrest, detention and deportation. Anyone — including refugees, foreigners, illegal entrants, Pakistani citizens — involved in criminality can be arrested, detained and prosecuted or in some cases deported except those subject to diplomatic or other immunity.
Published in The Express Tribune, October 21st, 2023.
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