After the Soviet intervention in Afghanistan, the dilemma of Afghan refugees is a global discussion. Pakistan has been at the frontline of this crisis and still hosting 1.5 million registered Afghan refugees while the estimated number of unregistered Afghan refugees is around 1 million. These people are concentrated throughout the country but the major proportion of them resides in Karachi and northwestern parts of the country where they find populations with cultural affinities. Currently, the bulk of this population are born and bred in Pakistan and share no memory of Afghanistan. The presence of this huge number of Afghan-origin people after the continuous schemes of voluntary repatriation initiated in early 2000s is an indication of an underlying policy issue which the government of Pakistan is reluctant to recognize. Therefore, it is in the best interests of Pakistan, especially in relation to long-term planning, that the government grants Afghan refugees Pakistani citizenship. This governmental action would be in consonance with the larger legal framework of the country and have positive social and economic consequences.
Pakistan is one of the few countries in the world which adopt the principle of Jus Soli as opposed to Jus Sanguinis. The adoption of this principle is in line with the ideological foundations of the country, as the founders of the country envisioned Pakistan to be a bulwark of certain universal principles. Their desire was never to create an ethno-state and this intent was reflected just after four years of the conception of the state in the form of the Pakistan Citizenship Act 1951.
According to Section 4 of the 1951 Act, every person born in Pakistan except the children of foreign diplomats shall be a citizen of Pakistan. However, Peshawar High Court in Ghulam Sanai case (PLD 1999 Peshawar 18) interpreted that the Act shall not apply to the children of Afghan refugees as they are provided only a temporary stay in Pakistan. The court reasoned that Afghan refugees are rather governed under the Pakistan Foreigners Act 1946 and are therefore ‘foreigners’ under section 2(a) of the 1946 Act. Therefore, the court states that anyone who is not a citizen is a foreigner. However, this is rather a simplistic extension of the law.
The ratio legis of both the 1946 and 1951 Acts was not in view of the current refugee crisis. The 1946 Act also only attempts to regulate and restrict the entry and exit of foreigners in Pakistan. The original provisions in the 1946 Act did not even remotely aim to legislate on an entirely separate and established legal regime of International Law reflected in the form of the Refugee Convention 1951.
One can argue that the original intent of our own legal regime itself advocates that people who are present in Pakistan for almost 40 years should be granted citizenship.
The political situation in Afghanistan also could impose international legal obligations upon Pakistan. Article 1(a) (2) of the Convention unequivocally describes a refugee as a person who is in fear of persecution in their home country. The situation in Afghanistan even after the Taliban-US peace deal cannot be described as evading this definition of ‘refugee’. Many parts of the country are still occupied by different political segments, with each bitterly opposed to the other group. Therefore, Article 33(1) which encapsulates the legal doctrine of non-refoulement and which has also attained the status of customary international law could bar Pakistan from any attempt of involuntary repatriation of Afghan refugees.
This is also in line with article 9 of the tripartite agreement between the UNHCR, Pakistan and Afghanistan. This agreement requires the Afghan government, together with other relevant parties, to ensure repatriation of Afghan refugees without any fear of harassment or persecution. The current situation of the Afghan government demonstrates that it is highly unlikely that this provision could be implemented. Any future Taliban-dominated government cannot also ensure the implementation of this provision due to the ethnic rifts within Afghanistan. Reverse migration after the repatriation schemes of 2002 is also a testimony to this assertion that the situation in Afghanistan, whether political or economic, is unable to allow for such an influx of people. Thus, political dimensions in Afghanistan make any idea of repatriation unfeasible.
Social and economic factors also suggest that the solution of the refugee crisis lies in granting citizenship to Afghan refugees. Currently, Afghan Refugees are provided with Proof of Registration Cards (POR) which provide a right of social mobility and the ability to stay in the country. However, the POR does not guarantee refugees the right to own vehicles, property or even a mobile connection. The ‘snowball effect’ of this exclusion is to systematically deprive them of any chance to access good education or to climb the social ladder. Rather, they are cornered into an informal economy to access these basic necessities which puts them at risk of all forms of exploitation. Moreover, this deprivation also results in ‘ghettoization’ of an ethnic group which is a detriment to the integration of society and creates further social stratification. It is important to mention that the majority of these refugees have experienced life in Pakistan which they consider their only ‘home’ and this institutionalized deprivation makes them extremely vulnerable to harbouring resentment.
There are two main arguments which are proposed against the granting of citizenship.
First, that Pakistan is already poor and cannot bear the burden of more people. This argument is without any substance as Afghan refugees pour 350 million US dollars int the Pakistani economy annually. This amount is in addition to the annual 150 million US dollars in aid from international donors to Pakistan. Moreover, Afghan refugees run a significant amount of businesses in Peshawar, Karachi and many parts of Khyber-Pakhtunkhwa, creating an increased demand for manufactures as well as providing employment. Their contributions to construction and waste treatment sectors are also invaluable.
The second argument relies on the security concerns of the Pakistani state that some Afghan refugees have links to terrorists in Afghanistan and the latter could end up being granted citizenship under the guise of refugees. However, our state fails to consider that not granting citizenship might be ‘counter-productive’ as ethnic slums might serve as fertile grounds for terrorist recruitment. This anxiety is also punishing millions for the crimes of very few people. Moreover, many influential refugees already had the resources to create fake IDs or bribe officials to make even original IDs before the extensive computerization of NADRA. That being said, there is still some merit in this concern which could be removed through a ‘due process’ for granting of citizenship. This procedure could require the refugees to show their source of employment and areas of residence, family statistics as well as family linkages in Afghanistan. They could also be subjected to an interim probation period where the consistency of their conduct and residence could further establish the veracity of their claims. In this way, many unregistered refugees could be allowed to enter into the national system while authorities can also screen potentially dangerous elements.
In summary, the benefits of providing citizenship weigh more than any problems emerging out of this action. Therefore, there is no reason to further delay this inevitable step which the government has to consider sooner or later.