The recent Islamabad High Court judgment in Rahil Azizi v the State and others highlights important aspects of Pakistan’s refugee rights framework and how that fits into its larger fundamental rights framework. The judgment was authored by Honourable Justice Babar Sattar who interpreted the Foreigners Act, 1946 and its application in light of Pakistan’s obligations under international human rights law, domestic fundamental rights law and criminal jurisprudence. The judgment also indicates a clear need to develop a more efficient and robust refugee administration system at the domestic level to allow genuine asylum seekers to be granted their due rights under international law. This will also allow the State to distinguish asylum seekers from other classes of migrants who can be dealt with more appropriately under alternative legal regimes.
Facts and Procedural History
In this case, Ms. Azizi entered Pakistani territory after escaping Afghanistan following the Taliban takeover in August 2021. She had previously worked for the Afghan Police in the previous regime. Individuals who worked in law enforcement ‘feared for their lives’ after the regime change (para 2), which is why many sought to escape the regime change for fear of persecution.
Because Ms. Azizi had entered Pakistan without a valid visa, an FIR was registered against her by the Federal Investigation Agency (FIA) under section 14(2) of the Foreigners Act, 1946 (para 3). She was then released on bail, the proceedings of which were unchallenged by the State. As a result, Ms. Azizi was placed in the custody of an officer appointed by the Ministry of Interior and in a facility run by the United Nations High Commissioner for Refugees (UNHCR) (para 8).
After she was granted bail, Ms. Azizi was granted official refugee status by the UNHCR office in Pakistan, with a note to the same effect being issued to a Magistrate in Islamabad. She was also granted ‘refugee status and a humanitarian woman at work visa’ by the Australian government in April 2023, for which she required an exit permit from the Ministry of Interior (para 12). However, because proceedings were pending against her on the basis of her illegal entry into Pakistan, the Ministry could not grant her an exit permit before the trial was complete (para 12). This was upheld by the Judicial Magistrate and Additional Sessions Court, claiming that the grant of a UNHCR asylum-seeker certificate ‘could not be applied retrospectively to legalize her entry into Pakistan without a visa’ (para 13).
Ms. Azizi sought to quash these orders through this writ petition filed in the Islamabad High Court. In analysing this judgment, this case comment will also look at Pakistan’s current legal framework on refugees.
Pakistan and Refugees
Pakistan hosts the fifth-largest number of refugees in the world at 1.7 million refugees, mostly originating from neighbouring Afghanistan. However, Pakistan is one of a few countries that have not ratified the United Nations Convention on the Status of Refugees, 1951 (Refugee Convention) and its Protocol, 1966. The Convention lays out the definition of a refugee as well as the basic rights framework that States Parties must guarantee to refugees under their jurisdiction. The Convention also emphasises the principle of non-refoulment, which prohibits States from repatriating refugees to their home States if their life or freedom would be at risk (Article 33). The principle of non-refoulement is deemed to have customary status and is therefore binding on all States regardless of whether they have ratified the Refugee Convention and its Protocol.
As a result, Pakistan does not have a robust legal framework governing the status and rights of refugees in its territory. This gap has resulted in greater reliance and outsourcing of refugee processing to the UNHCR.
UNHCR and Pakistan
The UNHCR carries out the majority of refugee-related work, including humanitarian aid, administrative processing of asylum seekers and governing refugee law frameworks. Owing to the gap in Pakistan’s domestic legal framework, refugee processing is overseen by the UNHCR under administrative frameworks agreed with the Government of Pakistan. In 1993, the Government of Pakistan signed a Cooperation Agreement with the UNHCR (page 156). Under this Agreement, Pakistan agreed to allow the UNHCR to conduct refugee status determination of asylum seekers in Pakistan as per the Statute of the Office of the UNHCR (Article 3 of Cooperation Agreement).
The UNHCR, Pakistan and Afghanistan are also party to a Tripartite Agreement on the voluntary repatriation of refugees to Afghanistan; while this is a significant development in the UNHCR’s work with Pakistan, it is not relevant to this case.
Pakistan’s domestic law relating to refugees
The main legislative act governing persons who may qualify as refugees is the Foreigners Act, 1946. The Act empowers the Federal government to make orders ‘prohibiting, regulating or restricting the entry of foreigners into Pakistan or their departure therefrom or their presence or continued presence therein’ (section 3). The Act also criminalises the intentional illegal entry of foreigners into Pakistan with up to ten years in prison and a fine of up to PKR 10,000. This offence is also made non-bailable under section 14A. However, the Act does not explicitly mention the word ‘refugee’ and whether a refugee would be a legal or illegal entrant. This lacuna in the legal framework has hampered the recognition of refugee rights.
Nevertheless, in reference to the judgment in Aamir Aman vs. Federation of Pakistan (PLD 2020 Sindh 533), the Islamabad High Court stated that
Pakistan ‘generally accepts UNHCR decisions to grant refugee status and allows asylum-seekers (who are still undergoing the procedure) as well as recognized refugees to remain in Pakistan pending identification of a durable solution (para 25).
Thus, despite the Foreigners Act prohibiting the intentional illegal entry of foreigners into the country, Pakistan accepts those individuals who have been granted refugee status by the UNHCR as an exception to section 14 of the Act. Given the complex nature of the legal framework, it is pertinent to examine the significance of this judgment.
References to International Law
Doctrine of Incorporation
In this case, the primary issue was whether the grant of a UNHCR asylum seeker certificate would essentially quash an FIR issued under section 14(2) of the Foreigners Act and apply retrospectively to legalise illegal entry into Pakistan. To determine this, the Court first had to navigate the complex relationship between international law and municipal law. The Court referred to several cases that indicate the doctrine of incorporation. In Farooq Ahmad Khan Leghari v Federation of Pakistan (PLD 1999 SC 57), the Supreme Court held that:
[in] Pakistan the Courts apply municipal law and not international laws in order to examine the vires of a provision of a statute. However, if a municipal law and an international law are consistent with each other and there is no conflict or inconsistency, the Court, to reinforce its view as to the interpretation of a constitutional provision or of a provision of statute, may press into service international law and/or conventions” (Rahil Azizi, para 18)
Similarly, in Sadia Jabbar v Federation of Pakistan (2018 PTD 1746), it was held that
“[i]t is of course, well settled as a general principle that if two interpretations of a provision are possible, then the one consistent with international law or Pakistan’s treaty obligations will be preferred. And it is equally well settled that if the meaning of the municipal law is clear then it must be given effect to, even though it may conflict with Pakistan’s obligations under international law.” (Rahil Azizi, para 20)
Accordingly, the doctrine of incorporation states that municipal law takes precedence over international law. However, where municipal law leads to an outcome that contradicts Pakistan’s international legal obligations, municipal law must be interpreted in a manner that upholds those international obligations as well.
Treaties
After consolidating this, the Court invoked other international human rights documents to find a duty to ensure the rights of refugees. The Court highlighted that Pakistan is a party to the International Convention on Civil and Political Rights, 1966 (ICCPR) and the Convention Against Torture, 1984 (CAT). The Court referred to Articles 2, 9 and 12(2) of the ICCPR, which protect the right against discrimination, the right to liberty and security of person, and the right to leave any country respectively (para 22). It also referred to Article 3(1) of CAT which encapsulates a similar non-refoulement principle to Article 33 of the Refugee Convention, with a distinct mention of ‘fear of torture’ as opposed to a ‘threat to life and freedom’. The invocation of similar provisions in other international treaties that Pakistan is a party to is a clever interpretive tool to bypass the fact that Pakistan is not a party to the Refugee Convention, but is still bound by international human rights law rules that apply to all individuals.
Importantly, the Court caveated that the mere fact that Pakistan is not a signatory to the Refugee Convention does not render its principles insignificant in this case (para 23). Although the Court cautioned against implying the Refugee Convention as embodying customary international law, by citing the Convention, it reinforced the recognition of its principles as reinforcing larger international human rights law principles. The Court cited Article 31 of the Refugee Convention, which prohibits the imposition of penalties on refugees for their illegal entry or presence into a territory, including restrictions on their movement.
Bearing these provisions in mind, the Court stated that under international law, section 14(2) should not be applied as a strict liability offence (para 28). Therefore, the State must prove that the individual possessed the mens rea (the knowing intention of wrongdoing) to commit an offence. The Court utilised the highlighted rules for a purposive interpretation of section 14(2), stating that it should not be used to ‘punish anyone who manifest to escape from their own country to Pakistan to save their lives’ (para 28). Thus, the Court adopted a nuanced broad-based approach to contemporary international human rights law to find the application of section 14(2) in Ms. Azizi’s case as illegal.
References to the Constitution
The Court also highlighted important provisions of the Chapter of Fundamental Rights in the Constitution of Pakistan, 1973 which were relevant to this case. Owing to the different phrasing of fundamental rights provisions, certain rights apply only to citizens (such as the right to property), while others apply to all individuals under Pakistan’s jurisdiction (such as the right to life). The rights to equal protection under the law (Article 4), security of a person (Article 9), fair trial (Article 10-A) and dignity (Article 14) fall under the latter category, thereby applying to all individuals irrespective of their citizenry.
The Court held that section 14(2) of the Foreigners Act must be ‘read together with Article 4, 9, 10-A and 14 of the Constitution’ as well as the international legal provisions previously highlighted (para 31). In doing so, the Court indicated that ‘The law is not meant to act [as] a trap [sic]’, providing a purposive approach with the invocation of fundamental rights (para 31).
Building upon this, the Court held that a mens rea could not be identified on Ms. Azizi’s behalf. It clarified that ‘the intent to seek refuge to save one’s life is not an illegal purpose’ and that ‘such action will not constitute an illegal purpose within the meaning of Section 14(2) of the Foreigners Act’ when read in line with the aforementioned fundamental rights (para 32). On this basis, the Court held that the denial of the exit permit violated the protection of life and liberty afforded under Article 9 to Ms. Azizi.
The ratio decidendi is reproduced below:
The impugned orders disregarded the protection of life and liberty afforded by Article 9 to any person for the time being in Pakistan and failed to appreciate that a foreigner who seeks to enter Pakistan as a refugee to save his/her life from persecution in home country [sic] and to seek asylum in a third country in accordance with international law is not liable for a criminal offence under Section 14(2) of the Foreigners Act. The said orders are therefore set aside (para 35).
This excerpt encapsulates the interaction between international human rights law and constitutional fundamental rights law in providing greater protections to refugees in Pakistan in the absence of a coherent legal framework to that effect.
Recommendations
The Court proceeded with making lengthy legal and institutional recommendations for greater refugee protection in the country. First, ‘a refugee must not be kept incarcerated like an under trial prisoner’ once their refugee status has been verified by the UNHCR (para 36). The Court recommended a mechanism that allows voluntary reporting by asylum seekers on arrival to register with the UNHCR and seek asylum in a third country. This is in consonance with Article 31 of the Refugee Convention. Secondly, it recommended arrangements for accommodating refugees ‘independently or in association with [the] UNHCR’ while asylum applications are pending. This will ensure that asylum seekers are not treated like ‘under trial prisoners’ under the law, particularly if their arrest and detention prevents them from accessing UNHCR support.
The recommendations include a mechanism to ensure that a foreigner seeking refuge can be acquitted of a charge framed under section 14(2) of the Foreigners Act once s/he ‘has been recognized by UNCHR and his [or her] application for grant of asylum is under process or has been approved’ (para 36). This will also ensure that the process of issuing exit permits to the refugee to reach their asylum country is not hampered by administrative hurdles. Altogether, these recommendations are a progressive view of the need to adopt a framework that acknowledges the difficulties faced by asylum seekers; the lacunae that are present in the Pakistani legal framework; and the necessary grounds and options for reform in keeping with Pakistan’s international and constitutional obligations.
Analysis
The judgment is significant for several reasons. First, it reinforces the role of the domestic judiciary in upholding Pakistan’s international legal obligations. The direct invocation of the provisions of the ICCPR and the CAT is a promising reinforcement of the importance of international human rights law in regulating the affairs of a State. It highlights the increased accountability that States are subject to because of their international obligations, as well as the role of the judiciary in holding the executive and the legislature accountable for failing to implement international law properly.
The judgment also draws an important connection between international human rights law and Pakistan’s own fundamental rights. The connections drawn highlight the importance of interpreting our own constitutional rights in a manner that aligns with international human rights law. In doing so, this judgment sets a positive precedent for a purposive and expansive interpretation of our constitutional rights by reinforcing their connection with international human rights law.
Justice Sattar’s invocation of the Refugee Convention also emphasises the value of the international refugee legal framework. While Pakistan hosts the fifth-largest refugee population in the world, it is not party to a convention that provides a rights framework for these refugees. Consequently, it lacks a structured domestic refugee rights framework, outsourcing most of said work to the UNHCR. With increasing worldwide displacement and forced migration, operating robust refugee management mechanisms has become increasingly significant, particularly for host countries of large refugee populations like Pakistan.
The recommendations put forth in paragraph 36 of the judgment were also based on practical considerations. Justice Sattar claimed that measures such as a separate lodging facility for asylum seekers and SOPs to withdraw criminal charges against asylum seekers whose applications are pending before the UNHCR would be ‘a sensible public policy choice to reduce litigation and prevent further burdening of the criminal justice system with unnecessary trials’ (para 36). Thus, this judgment highlights a pressing need for Pakistan to develop a robust refugee administrative system to reduce the burden on the criminal justice system and to afford genuine asylum seekers their due rights under customary international law. This will also allow the State to distinguish between asylum seekers, economic migrants, and illegal immigrants with potentially harmful intent, in a more efficient and effective manner.
