By: Arsham M. Bari
Edited by: Andrew Bongiovanni
Graphic by: Arsh Naseer
Background
On October 3, 2023, the Pakistani government ordered all illegal foreign nationals to leave the country voluntarily by the end of the month under the Illegal Foreigners’ Repatriation Plan (IFPR),1 or face imprisonment or forced deportation. This expulsion is in response to a rise in terrorism in the country; officials reported twenty-four suicide bombings in 2023, claiming Afghan nationals to be responsible for fourteen of them.2 Although IFPR does not explicitly target Afghan refugees, out of the 4 million foreign nationals in Pakistan, 3.8 million are Afghan refugees, including 1.7 million undocumented ones,3 effectively making them the main focus of this policy. Under the IFPR, the deportation process was divided into three phases: the first phase targeted illegal foreigners, the second phase focused on Afghan Citizen Card holders, and the third phase will expel the United Nations High Commissioner for Refugees (UNHCR)-issued Proof of Registration holders.4
The decision to deport Afghan refugees evoked huge outcry from the international community, including the United States, European countries, human rights organizations, local civil society in Pakistan, and the Taliban government in Afghanistan. Critics argued that the policy violates Pakistan’s obligations under the United Nations Convention Against Torture and the principle of non-refoulement, which prohibits forcibly returning people to countries where they risk torture or persecution.5 Pakistan’s government blames the Afghan Taliban for harboring the Tehreek-e-Taliban Pakistan (TTP), the local militant group, which also revoked the ceasefire with the government in 2022.6 Pakistan’s government justified the decision with the need to prioritize state security. As a non-signatory to the 1951 Refugee Convention and under the Foreigners Act, 1946 of Pakistan’s constitution,7 the government claims its policy is legally justified under international law.
More than a half a million Afghan refugees have since returned to Afghanistan through the Spin Boldak and Torkham border.8 A study by the Pakistan Institute of Development Economics found that only 4 percent of Afghan nationals are willing to voluntarily repatriate. About 29 percent expressed willingness to return if peace is restored in Afghanistan, while the majority––67 percent––stated they are unwilling to go back.9 Pakistan has hosted Afghan refugees for over forty years; multiple generations of Afghans, including many born and raised in Pakistan, have settled in the country. This sudden, arbitrary policy by a caretaker government, not constitutionally mandated for long-term decisions,10 puts vulnerable Afghan populations at great economic and humanitarian risk, particularly women, girls, journalists, human rights defenders, artists, and former Afghan officials.
The Historical Context
The Pakistan-Afghanistan border, known as the Durand Line, spans 2,640 kilometers of mountainous terrain. Many Pashtun tribes live on both sides, sharing language, customs, culture, and businesses. These tribes often hold ID cards from both countries, using whichever card is convenient for their location. Historically, they crossed the border freely for business and even provided refuge to tribe members from across the border during feuds and from law-enforcement agencies.11
The Durand Line has been a long-standing conflict between Pakistan and Afghanistan, with Afghan governments refusing to recognize the border established by the British in 1893. Efforts by both states to restrict border movement have largely failed, even during political conflicts. Over the decades, Pakistan imposed restrictions on formal crossing points, limited trade, and dug trenches. In 2017, Pakistan fenced the entire Durand Line to stop TTP militants from entering through Afghanistan, despite strong public backlash from both sides.12 This move disrupted familial relationships, divided villages, and impacted the local economy. Owing to a history of fluid border movement and open-door policies for Afghan refugees until the late 1980s, coupled with continually changing refugee policies, Pakistan had over 1.7 million undocumented Afghan refugees by 2023.
Since 1979, Pakistan has hosted three influxes of Afghan refugees on a prima facie basis. After the Soviet invasion of Afghanistan, Pakistan hosted over a million Afghan refugees, with the number rising to 3.2 million between 1981 and 1990. In 1992, Pakistan and the UNHCR launched an assisted voluntary return (AVR) program, successfully repatriating about 1.4 million refugees to Afghanistan in one year. The second major wave of Afghan refugees arrived after the U.S. invasion post-9/11 in 2001.13 During this time, Pakistan was facing sanctions from the United States and the western countries for testing a nuclear weapon, so the country adopted a prevented refugee policy, with refugees arriving after 1997 subjected to deportation and fines according to the 1946 Foreigners Act. The latest significant influx occurred in 2021, following the Taliban’s takeover, bringing over 600,000 Afghan refugees to Pakistan.14
The Legal and Institutional Context
Due to the absence of a national legal refugee framework in Pakistan, the United Nations Human Rights Commissioner (UNHRC) for Pakistan became a crucial partner to the government to provide humanitarian assistance to asylum seekers, assist in repatriation to one’s home, or a third country, and conduct a census of the Afghan refugees since 1971. Pakistan has signed multiple agreements with UNHCR including a cooperation agreement in 1993, memorandum of understandings in 2004 and 2006, and a tripartite agreement among Pakistan, Afghanistan & UNHCR in 2007, which was extended until 2021.15 UNHCR has supported the building of camps situated near major cities, where Afghan refugees were permitted to build local markets, open small businesses, and establish carpet weaving factories.
In 1980, Pakistan established the Commissionerate for Afghan Refugees (CAR) under the Ministry of States and Frontier Regions to manage Afghan refugees. Headquartered in Islamabad with provincial branches, CAR oversees Afghan refugee administration, financial management, repatriation, and the supervision of UNHCR-funded projects. Afghan refugees were initially required to register with one of the seven Afghan Islamic factions in Pakistan to receive aid, with registered individuals issued passbooks for family identification and aid distribution. These passbooks, later replaced by digital Proof of Registration (PoR) cards between 2006 and 2007, provided legal status for three years but excluded those arriving post-2005. In 2017, Afghan Citizen Cards (ACC) were issued to Afghans without PoR cards, regardless of their arrival date in Pakistan. Like PoR cards, ACCs provide legal protection against arbitrary arrest, deportation, or detention under the Foreigners Act.
Pakistan does not have any specific law that safeguards the social, political, and economic rights of Afghan refugees in the country.16 Except for a few judicial precedents, it also does not offer any legal provisions for citizenship to the Afghan refugees, even through marriage. The children of married couples consisting of a Pakistani and a foreign national can apply by-right for Pakistani citizenship.17
National Security and Repatriation: Legal Justifications in International Law
Many international organizations including UNHCR, the Human Rights Watch, and Amnesty International criticized the deportation of the Afghan refugees as a violation of the international law under the customary non-refoulement principle, and Pakistan’s obligations as a party to the UN Convention against Torture (CAT). However, Pakistan’s government claims that it is within the parameters of its international obligations in deporting the Afghan refugees. As outlined in Article 1 C (1) to (6) of the 1951 Refugee Convention, a refugee ceases to be a refugee under specific conditions. For Afghan refugees, Article 1 C (5) applies, stating that they can no longer enjoy refugee status because the circumstances under which they were recognized as refugees have ended.18 In October 2023, the Chief Commissionerate for Afghan Refugees (CCAR) issued a government-wide circular stating that PoR and ACC holders are allowed to reside temporarily in Pakistan and can only be repatriated voluntarily.19 The deportation efforts focus solely on undocumented and illegal foreigners, with Pakistan still hosting over a million Afghan refugees.
Amidst rising national security threats, which resulted in over 700 security officials and civilians killed in terror attacks in 2023, the Pakistani government cites an exception to the principle of non-refoulement (Article 33 of the Refugee Convention and Article 3 of the CAT), allowing repatriation due to national security concerns.20 As Pakistan is not a party to the 1951 Refugee Convention or the 1967 Protocol Relating to the Status of Refugees,21 and given that illegal immigration is recognized as an international offense, it is within its legal rights to repatriate illegal refugees. This move aligns with a global trend of nationalist policies, with many countries, including Mexico, the United States, Canada, and E.U countries, closing their borders to illegal immigrants and halting asylum processes for refugees.22,23
Ethical Considerations in the Afghan Refugee Crisis in Pakistan
Pakistan has hosted Afghan refugees for over forty years, despite economic turmoil. However, this display of hospitality has not been without political motives to serve Pakistan’s domestic and international geo-political interests. The militarization and politicization of Afghan refugees has resulted in arbitrary, short-term and ambiguous refugee policies. The policies also hinder the development of civil society organizations assisting Afghan refugees. These temporary measures place significant burdens on Afghan refugees, preventing many from renewing expired documents or registering as refugees. Despite being born and raised in Pakistan, they do not qualify for Pakistani citizenship.24 Moreover, law enforcement crackdowns have caused panic among refugees, prompting those with documentation to leave the country to avoid humiliation and harassment. In Islamabad, police demolished hundreds of illegally constructed mud homes where impoverished Afghans had been residing.25 Human Rights Watch alleged that Pakistani officials have used coercive measures to compel Afghans to leave the country. They reported incidents of mass detentions, confiscation of property and livestock, and destruction of identity documents, resulting in the expulsion of thousands of Afghan refugees and asylum seekers.26
Afghanistan faces an unprecedented humanitarian crisis aggravated by drought, economic collapse, and limited healthcare access. Approximately 875,000 children suffer from severe acute malnutrition; another 3.1 million people, including women and children, are affected by acute malnutrition.27 Income reductions have affected 80% of households, making it difficult to meet basic needs. In March 2022, the Taliban had banned the education of girls above the age of twelve.28 Sending Afghan refugees, especially women and girls, back is not only a humanitarian crisis but also fundamentally a subjugation of their human rights.
Policy Recommendations
- International humanitarian and refugee agencies, including UNHCR, should advocate for non-signatory states like Pakistan to ratify the 1951 Refugee Convention. This advocacy aims to align the government’s refugee policies with international legal standards on refugees and humanitarian principles.
- Pakistan and the Afghan Taliban government should initiate renewed negotiations aimed at fostering a more constructive relationship. International support and mediation are crucial in facilitating this process.
- The Commissionerate for Afghan Refugees in Pakistan and the UNHRC should strengthen regional and global cooperation and collaboration to advance responsibility sharing with the Global Compact on Refugees.
- Afghan nationals in Pakistan require reliable and accessible routes for resettlement in third countries. The United States, United Kingdom, Germany, and Canada should expedite resettlement for Afghans who are particularly at risk, including women and girls, LGBTQ Afghans, human rights activists, and journalists.
Works Cited
[1] UNHCR and IOM. 2023. “UNHCR-IOM Pakistan Flash Update on Arrest and Detention/Flow Monitoring, 15 Sep to 15 Oct 2023.” UNHCR Data Portal. https://data.unhcr.org/en/documents/details/104132.
[2] Shahzad, Asif. 2023. “Pakistan Orders Illegal Immigrants, Including 1.73 Mln Afghans, to Leave.” Reuters. https://www.reuters.com/world/asia-pacific/pakistan-orders-all-illegal-immigrants-leave-after-suicide-bombings-2023-10-03/.
[3] Hussain, Abid. 2023. “As Pakistan Deports Refugees, Tense Afghanistan Ties Come in Sharp Focus.” Al Jazeera. https://www.aljazeera.com/news/2023/11/7/as-pakistan-deports-refugees-tense-afghanistan-ties-come-in-sharp-focus.
[4] Seiam, Sanaullah. 2024. “Pakistan Must Halt Unlawful Deportation of Afghan Refugees.” Amnesty International. https://www.amnesty.org/en/latest/news/2024/04/pakistan-government-must-halt-deportation-of-afghan-refugees/.
[5] Human Rights Watch. 2023. “Pakistan: Widespread Abuses Force Afghans to Leave.” Human Rights Watch. https://www.hrw.org/news/2023/11/28/pakistan-widespread-abuses-force-afghans-leave.
[6] Shahzad. 2023. “Pakistan orders illegal immigrants, including 1.73 mln Afghans, to leave.”
[7] Shigri, Afzal A., and Maleeha Lodhi. 2023. “Govt Initiates Nationwide Operation to Deport Illegal Foreign Nationals.” Dawn. https://www.dawn.com/news/1785519.
[8] Ibid.
[9] Kakar, Ajmal. n.d. “From Forced Migration to Forced Repatriation.” Pakistan Institute of Development Economics. Accessed June 20, 2024. https://pide.org.pk/research/from-forced-migration-to-forced-repatriation/.
[10] Hussain, Zahid, Afzal A. Shigri, and Maleeha Lodhi. 2023. “Forced Expulsion – Newspaper.” Dawn. https://www.dawn.com/news/1787440/forced-expulsion.
[11] Samim, Sabawoon. 2024. “The Durand Line and the Fence: How Are Communities Managing with Cross-Border Lives?” Afghanistan Analysts Network. https://www.afghanistan-analysts.org/en/reports/regional-relations/the-durand-line-and-the-fence-how-are-communities-managing-with-cross-border-lives/.
[12] Ibid.
[13] Siddikoglu, H., and A. Z. Sagiroglu. 2023. “The Responses of Pakistan and Turkey to Refugee Influxes: A Comparative Analysis of Durable Solutions to Protracted Displacements.” Journal on Migration and Human Security 11, no. 1: 41-56. https://doi.org/10.1177/23315024231160764.
[14] Bhatti, Haseeb. 2023. “Another Petition Filed in SC Against Deportation of Afghan Nationals.” Dawn. https://www.dawn.com/news/1793863/another-petition-filed-in-sc-against-deportation-of-afghan-nationals.
[15] Haider, Khadija. “Illegal Foreigners Repatriation Plan & Pakistan’s National Security: A Legal Threshold of International Law.” SSRN, https://doi.org/10.2139/ssrn.4833404.
[16] Siddikoglu & Sagiroglu. 2023. “The Responses of Pakistan and Turkey to Refugee Influxes.” 41-56.
[17] Haider, Khadija. “Illegal Foreigners Repatriation Plan & Pakistan’s National Security.”
[18] Ibid.
[19] UNHCR and IOM. 2023. “UNHCR-IOM Pakistan Flash Update.”
[20] Haider, Khadija. “Illegal Foreigners Repatriation Plan & Pakistan’s National Security.”
[21] Siddikoglu & Sagiroglu. 2023. “The Responses of Pakistan and Turkey to Refugee Influxes.” 41-56.
[22] Haider, Khadija. “Illegal Foreigners Repatriation Plan & Pakistan’s National Security.”
[23] Reuters. 2023. “European Countries Tighten Borders.” Reuters. https://www.reuters.com/world/europe/european-countries-tighten-borders-2023-11-24/.
[24] Aljazeera. 2023. “Why are so many Afghans being kicked out of Pakistan? | Start Here.” YouTube. https://www.youtube.com/watch?v=LDveoTmuRQc.
[25] Shigri & Lodhi. 2023. “Govt Initiates Nationwide Operation to Deport Illegal Foreign Nationals.”
[26] Human Rights Watch. 2023. “Pakistan: Widespread Abuses Force Afghans to Leave.”
[27] UNCHR. 2023. “Afghanistan Refugee Crisis Explained.” USA for UNHCR. https://www.unrefugees.org/news/afghanistan-refugee-crisis-explained/.
[28] Barakat, Sultan. 2024. “Taliban Ban on Girls’ Education Defies Both Worldly and Religious Logic.” Al Jazeera. https://www.aljazeera.com/opinions/2024/4/1/taliban-ban-on-girls-education-defies-both-worldly-and-religious-logic.
