Landmark Case on Right to Asylum in Pakistan

Landmark Case on Right to Asylum in Pakistan


The Islamabad High Court recently passed a judgment in the case of an Afghan asylum-seeker who was being prosecuted by FIA for illegal entry into Pakistan.

The Court allowed the petition and quashed the criminal proceedings against the asylum-seeker. This 21-page judgment authored by Justice Babar Sattar is definitely the most detailed and seminal judgment on the right to asylum in Pakistani’s legal history.

The petitioner was represented by Umer Ijaz Gilani, Partner Law and Policy Chambers, who possesses rare expertise in Pakistani citizenship and immigration laws.

Law and Policy Chambers is proud to be the home of specialist lawyers and allied professionals who use their brilliance not just for minting money but for contributing towards the development of Pakistani law, economy and society.

LINK to Complete Judgment
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23.ย  Article 31 of the Refugee Convention thus becomes a useful aid to interpret section 14 of the Foreigners Act, read with provisions of ICCPR, CAT, the agreement entered into by and between the State of Pakistan and UNHCR, and Articles 4, 9 and 14 of the Constitution.

27. The question before us is 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 is concerned. The answer cannot possibly be in the affirmative in any civilized country. 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 legislative intent behind the Foreigners Act is not to punish but to prescribe a procedure regulating entry and exit from Pakistan for foreigners and to deter those who seek to enter Pakistan without seeking prior permission, for illegal purposes.

30. Whether or not a foreigner has been forced to enter Pakistan out of fear for his/her life is no doubt a factual determination. But making such factual determination will not always require a full-fledged trial….

31. 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 libertyย  must do so at the cost of being imprisoned for a term prescribed under Section 14(2) of the Foreigners Act.

32. The components of offence under Section 14(2) of the Foreigners Act include entry into Pakistan for an illegal purpose and doing so knowingly. The actus reus of the offence is entering Pakistan illegally and the mens rea is the intent to enter for an illegal purpose. However, the intent to seek refuge to save oneโ€™s life is not an illegal purpose. Where facts establish that a foreigner entered into Pakistan to save his/her life and seek asylum fearing persecution in his/her home country, such action will not constitute an illegal purpose within the meaning of Section 14(2) of the Foreigners Act. A contrary interpretation of Section 14(2) of the Foreigners Act is not conceivable in a country such as Pakistan that treats fundamental rights as inalienable rights of human beings.

36. It must also be noted that in a case where the State has initially registered an FIR under the Foreigners Act, but has subsequently verified through the instrumentality of 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 UNCHR, the refugee must not be kept incarcerated like an W.P No. 1666 of 2023 20 | P a g e under trial prisoner. The Federal Government must prescribe a mechanism in consonance with Article 31 of the 1951 Refugee Convention to enable refugees to voluntarily report upon arrival in Pakistan that they seek refuge, and wish to register with UNHCR to seek asylum in a third country. It must also make arrangements to lodge refugees independently or in association with UNHCR so that pending recognition of refugee status and decision on asylum applications, such refugees are not locked-up in prisons. The government must also frame SOPsโ€™ to direct police authorities to release an accused refugee under Section 169 of Cr.PC or file an appropriate report under Section 173 of Cr.PC, or file an appropriate application under Section 494 of Cr.P.C 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 that he/she has been charged with. And the Ministry of Interior can issue an appropriate exit permit to enable such foreigner to travel to the country that has granted him/her asylum.

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