Dr Saleema’s Heroic Fight Against COVID-19 Revives The Afghan Refugees’ Citizenship Debate
Dr Saleema and various other Afghan refugees may have served Pakistan through its worst times but they can’t get Pakistan’s citizenship under the law. It’s time to fix the citizenship laws of the country, argues Usman Khan.
The United Nations and Pakistan recently honored an Afghan refugee, Dr Saleema Rehman, for fighting on the forefront against the Corona pandemic in Pakistan. This has reignited the debate on whether the refugees should be allotted Pakistani citizenship or not with many highlighting Dr Saleema’s contributions as proof of the impact the Afghan refugees have had. While it is settled that the Afghan refugees in Pakistan have contributed greatly to the local economy, we must try to understand why, despite living in Pakistan for three generations, they have not been granted Pakistani citizenship.
It is no secret that Pakistan is home to some of the most outdated laws in the region. Our citizenship law is also one of these. The citizenship of a person is covered under the ‘Pakistan Citizenship Act 1951’ comprising 23 sections, the ‘Pakistan Naturalization Act 1926’ comprising 12 and the ‘Foreigners Act 1946’ comprising 17 sections. Pakistan’s law of citizenship is primarily governed by the citizenship act of which sections 4 and 5 cover the citizenship concept of ‘Jus Soli’ (Law of the soil) and ‘Jus Sanguine’ (Law of the blood) respectively. Pakistan practices Jus Soli since section 4 clearly states that any person born within the confines of Pakistan is considered a citizen of Pakistan. Yet, the Afghan refugees remain without citizenship.
The status of the Afghan refugees can be understood through the various precedents the courts of Pakistan have set through their judgments.
In the “Saeed Abidi Mehmood vs Nadra” case in 2017, Islamabad High Court determined, placing reliance on ‘PLD 2012 SC 501’ and ‘PLD 2012 SC 923’, that any person born within the confines of Pakistan shall be considered a citizen of Pakistan. The petitioner, in this case, was not an Afghan refugee but the son of a Somali migrant. The court ordered NADRA to provide him with citizenship immediately and then highlighted why the hospitality could not be extended to the Afghan refugees by stating that the Afghans have been granted refugee status for temporary stay under the UNHCR mandate and the status of the refugee declared in the United Nations Convention 1951. With that the court highlighted
“Once a person has been declared refugee he cannot claim benefit under The Pakistan Citizenship Act, 1951 in any manner and his status cannot be converted to any other position except he has been granted freedom of movement, residence permit, protection of the law and in some cases entitled for employment in private business and jobs except government authorities.”
Along with this, Peshawar high Court passed another judgment in the ‘Ghulam Sanai vs The Assistant Director e.t.c’ case where the petitioner, being the son of an Afghan refugee, cited his birth as well as property ownership within the country as a reason to be granted citizenship. However, Peshawar High Court highlighted that the simple stay of a foreigner within Pakistan, no matter how extended or long, will not change the status nor convert him into a citizen of the country automatically. The court stated that the issue of Afghan refugees is governed by the ‘Foreigners Act 1946’, not the ‘Citizenship Act 1951’, and thus they cannot claim the relief granted under the Citizenship Act. The court defined the Afghan refugees as Foreigners under section 2 sub-section A of the ‘Foreigners Act 1946’.
With the above case laws, we conclude that the status of the Afghan refugees is not that of a migrant. It is legally complicated and the courts have barred any citizenship to be conferred upon them. However, it is also true that the Pakistani citizenship laws are outdated and incompatible with the current situation within the country, and the world, concerning refugees. The Pakistani government is obligated to immediately take steps to work on the citizenship legislation so that these laws can be updated and the Afghan refugees can come to know of their status. Their future currently remains unclear. Dr Saleema will be one day denied the citizenship and be forced to return to Afghanistan, leaving a country where she worked her entire life and served the country courageously during her hour of great need.