The author, Zakra Noor, is a lawyer and recent graduate of Bahria University, located in Islamabad, Pakistan.
Globally, thousands and millions of people flee their homes due to persecution, conflict, national disputes, political instability and other threats, seeking refuge in other countries. Understanding how different countries protect the rights of these refugees is essential in ensuring their safety and well-being. The protection of refugees is a global challenge whether it’s a developed country or a developing one. Pakistan has significantly a long history of hosting refugees, particularly those fleeing war and persecution in the neighboring state of Afghanistan. However, it is to be highlighted here that merely hosting the refugees doesn’t withdraw the states from the responsibility of providing them with their basic rights and drafting those rights into a legislative framework. Despite this humanitarian tradition, Pakistan lacks a comprehensive legal framework specifically dedicated to refugees. This absence has significant consequences for the rights and well-being of refugees in Pakistan as well as the country’s socio-economic condition as a developing state. This study in general aims to provide a comprehensive understanding of the challenges faced by Pakistan hosting refugees while also analyzing the effectiveness of legal systems in place for refugee protection, especially after the recent refugee deportation phase of 2023. Before diving into the topic, it is necessary to understand who refugees are.
Who is a Refugee?
Under the 1951 Refugee Convention, a refugee is someone who:
(i) has a well-founded fear of persecution because of his or her race, religion, nationality,
political opinion, or membership in a particular social group. (ii) is outside his or her country of origin or nationality; and (iii) is unable or unwilling (because of the fear of persecution) to rely on the protection of that country or return there; and (iv) and is not having nationality and is
being outside the former habitual origin as a result of such events, is unable to return to it.
The subjective element fear in the definition of refugee means a state of mind or expression of reason not to return home. It is dependent on the individual’s personal and family background or situation due to which he or she is unable to return. This can also be inferred from the objective and circumstances. For instance, the mere fact of applying or having applied for refugee status is sufficient. Moreover, the word persecution is not explained in the 1951 Convention, but from Article 33 of the 1951 Convention, it can be inferred that a clear or implied threat to life or freedom or violation of other core rights constitutes persecution.
Thus, a person is supposed to be a refugee as soon as he or she fulfills the criteria contained in the definition of the 1951 convention relating to the status of refugees, and a person may also deserve international protection if he or she qualifies for “subsidiary protection.” According to the EU’s international protection qualification directive:
Person eligible for the subsidiary protection” means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned if sends back to his origin or former habitat would face real risk or harm.
Protection of Refugees under International Law
Thus, a refugee as defined above, is a person who fled in fear of persecution, required to be protected globally. Protecting refugees is the core mandate of the UNHCR under the 1951 Convention. Every government of a state provides basic human rights and protection to its citizens. But when these people become refugees, the state’s net of protection disappears. Under international law, every state is required and is obliged to protect refugees seeking asylum and not return the refugees to states where they risk harm, threat or discrimination. Moreover, every state is required to formulate laws, rules and regulations in light of the international conventions to deal with and protect refugees and also ensure their enforcement.
Respecting the rights of refugees, a refugee has the foremost right to safe asylum. However, the UNHCR’s concerns go beyond the physical safety of refugees. Under international law, refugees shall be granted at least the same rights as any other citizen or legal resident is provided with, including but not limited to freedom of thought, expression and movement, and freedom from torture as well as degrading treatment. Refugees shall be given access to medical care, education, and schooling and also a right to work and earn, opportunities of income-generating activities and skills-training programs according to the resources available in the host countries.
Beyond Hospitality: The Urgent Need for a Refugee Law in Pakistan
Pakistan, irrespective of hosting millions of refugees, has a complex relationship with refugee laws. Pakistan has not framed any express or definite national laws to deal with refugees and for the protection and definition of their rights. The refugee law in Pakistan is shaped by customary international law, international obligations, some domestic policies, and reservations from international law, seeming to be a patchwork of laws. Because Pakistan is not a signatory to the 1951 Convention relating to the status of refugees, the backbone of refugee law, it has also not yet enacted any national legal framework for the protection of the rights of refugees. Furthermore, Pakistan has not created any procedural law for the assessment of refugee status, nor has it set any eligibility criteria for the people seeking asylum in Pakistan’s territorial limits. In the absence of any national law, the refugees are thus treated with the Foreigners Act 1946, an act of the British imperial legislative assembly that was enacted to provide certain powers to the interim government of the British Indian state regarding the matters of foreigners in India, which unfortunately does not fully address refugee rights because of its nature and purpose of enactment. The UNHR conducts refugee status determination under the statute of the UNHCR for Refugees adopted by the UN General Assembly resolution of 1950 and on behalf of the Government of Pakistan in accordance with the Cooperation Agreement of 1993 between the UNHCR and the Government of Pakistan, and these UNHCR decisions of are usually accepted by Pakistan in respect of grant of refugee status.
The absence of a dedicated legal refugee framework means refugees in Pakistan rely on an eclectic fabric of policies and the outdated Foreigners Act of 1946. This leaves them vulnerable in a number of ways, including the fact that refugees often struggle to access basic rights like education, healthcare, and employment in Pakistan. Many are forced into informal labor sectors with little to no protection because of their uncertain status and fear of deportation. Children of refugees often face barriers when enrolling in school due to unclear documentation requirements or a lack of designated schools in refugee-populated areas. A 2019 UNHCR report found that only approximately 49 percent of Afghan refugee children in Pakistan were enrolled in primary education. Refugees may struggle to access affordable healthcare due to limited access to public hospitals or high doctors’ fees at public hospitals. Even healthcare programs such as “Sehet Sahulat Card” are not extended to non-citizens.
Moreover, without legal recognition, refugees are exposed to exploitation by employers, landlords, and even authorities. Many refugees, particularly those without Proof of Registration (POR) cards, are restricted from formal employment. The Proof of Registration Card is a temporary registration card for Afghan refugees or migrants in Pakistan which grants some protection, but refugees with (ACC) Afghan Citizen Carsd and undocumented migrants and refugees are always vulnerable to arrest and detention as well as deportation. This setback forces them towards the informal sector where they face lower wages, unsafe working conditions, and a lack of social security benefits. Reports have shown that Many Afghan refugees as well as migrants work in Pakistan in the informal economy due to their undocumented status because of the lack of any dedicated refugee law. For example, Afghan refugees in the brick kiln industry, a hidden industry that is often unorganized and unregulated, often work in hazardous environments for little pay and have limited bargaining power due to their undocumented status. A study by the International Labour Organization (ILO) found that Afghan refugees in Karachi were often employed in low-skilled jobs at lower wages compared to Pakistani workers in similar roles.
Another violation casually committed is the restriction on the movement of refugees. Refugees often face limitations on their inter-provincial movement within Pakistan, hindering their way to finding safe and secure housing or pursuing livelihoods. Recent crackdowns after the 2023 deportation phase have seen increased restrictions on refugees moving between provinces. This can disrupt family ties or limit access to job opportunities or specialized medical care not available in all areas. Furthermore, without a clear framework, even law enforcement agencies find it difficult to maintain public order and manage refugee populations, ultimately leading to potential security risks. The consequences of the absence of such a legal framework are evident in Pakistan’s 2023 ‘Illegal foreigner’s repatriation plan.’ It was seen and declared as a flawed deportation drive by international communities due to the violation of fundamental rights of already vulnerable refugees and their forced and arbitrary deportation, ultimately violating the principle of “non-refoulment.”
Reports also emerged of police raids, extortion, harassment, and the detention of many Afghan people, including women and children. These actions not only violated the basic human rights of the refugees enshrined in many universal documents and in chapter-II (fundamental rights and principles of policy) of the Constitution of Pakistan 1973 but also significantly harmed Pakistan’s reputation internationally because the deportation plans lacked transparency and formal due process of law. None of the Afghans, not even those with POR cards, were given the opportunity to be heard or to present their claims. These actions were strongly condemned by Human Rights Watch and Amnesty International for violating human rights and imposing an abusive, sudden and irregular deportation scheme. Thus, there are numerous consequences of the absence of a national refugee framework, not only for the refugees but for the state as well.
Without any defined legislative framework, refugees in Pakistan are in a state of legal limbo, making them highly vulnerable to discrimination and exploitation. If on one hand the absence of national refugee law makes the refugee population vulnerable, on the other hand, it becomes an economic burden for the host state too. The lack of a defined framework to protect the refugees and to meet the formalities and resources of the state makes it highly difficult for the government. It affects the state socially as well as economically. Because of the absence of a national structured framework and financial budget to fulfill the requirements of refugee protection and accommodations, the government has to rely on foreign aid and ad-hoc measures, leading to an unpredictable financial burden on the state. This negatively affects both the refugees and the host countries. Moreover, the refugee influx and not being able to meet the formalities and necessities of refugees creates tension in the state. Refugee influxes, particularly in developing states like Pakistan with resource-scarce environments, can cause strain on social and security infrastructure. Hence, merely hosting the refugees does not withdraw states from the responsibility, but formulating defined policies and procedural laws for their status, protection and non-refoulment is the main effort.
Thus, there are numerous consequences of the absence of a national refugee framework, not only for the refugees but for the state as well. Pakistan’s lack of a dedicated national refugee law creates a state of ambiguity regarding refugee rights and procedures for claiming asylum claims. This lack of clarity also leads to difficulty in determining who qualifies for refugee status and protection and how they can access this protection while contributing to the state economy. Determining status is crucial for refugees not only for the protection of their rights but also for the locals to accept them as peaceful fellow habitants residing in their state due to fear of persecution in the state of their origin.
Hence, without putting an effort into making a dedicated refugee legal framework that aligns with international principles as well as Pakistan’s situation of being a developing state, Pakistan will remain stuck between a rock and a hard place. With such a legal gap, it cannot go far in bearing the struggle to balance its internal security and economic issues with international humanitarian obligations. There is a dire need for a balanced approach.
A well-designed refugee law truly dedicated to the subject of refugees can help mitigate these negative consequences. By establishing a clear system for registration, documentation, and potential pathways to integration, Pakistan can manage the refugee population more effectively and efficiently and address the concerns of host communities. This would allow Pakistan, being a developing state, to fulfill its humanitarian obligations while also safeguarding its own development goals.
