Refoulement of Afghan refugees and land rights

  • Minahil Ali
  • Nov 14, 2023

On October 3, Pakistan’s Interior Ministry declared that all undocumented migrants in the country had 28 days to leave voluntarily or risk deportation. This announcement led to a significant increase in Afghans leaving Pakistan, including registered refugees, since October 3.

Registered refugees receive Proof of Registration (PoR) cards, granting access to essential services, freedom of movement within Pakistan, and de facto protection against refoulement. However, unregistered Afghans are subject to the strict regulations of the Foreigners Act (1946).

Despite three major registration drives since 2006, which issued PoR cards to millions, thousands of refugees could not complete the registration process. Known as “undocumented migrants,” they lack access to basic services like healthcare and education and live in constant fear of arrest or deportation. They resort to informal work, risking exploitation.

Pakistan’s Comprehensive Policy on the Repatriation and Management of Afghans, enacted in February 2017, offers some relief. It aims to register all undocumented Afghans and extend PoR card validity until the end of 2017.

Registered individuals will receive Afghan Citizen Cards (ACCs), offering legal protection against arbitrary arrest, detention, or deportation, and allowing them to stay in Pakistan until they obtain official documentation from the Afghan government. This project aids families with both registered and undocumented members.

Pakistan lacks a national asylum system and is not a signatory to the UN Refugee Convention. However, it has an agreement with UNHCR, allowing the latter to issue PoR to Afghan applicants, legally enabling them to stay in Pakistan.

The tripartite agreement, acknowledging voluntary repatriation as the best long-term solution, covers Afghan nationals with PoR cards issued after the 2006–07 registration. The agreement, first signed in 2003 and extended several times, most recently on June 18, 2019, aims to facilitate voluntary return and reintegration into Afghanistan. Following this, the Federal Cabinet extended PoR card validity until June 30, 2020.

In 2009, Pakistan and the UNHCR agreed to extend Afghan refugees’ stay until the end of 2012. The agreement, signed by the UNHCR and the Ministry of States and Frontier Regions (SAFRON), outlined plans for the Afghans’ temporary stay, voluntary return, and international support for Pakistan.

Since settling in Pakistan, Afghan refugees have acquired land and property, including homes built on land owned by affluent landlords.

While they often have permission, they lack ownership rights, and many assets are held without proper documentation. This precarious situation makes them vulnerable to exploitation and affects their ability to sell assets at fair value.In 2017 it was recorded that many Afghan refugees were living in homes that they owned, built on lands belonging to affluent landlords. While they typically have the latter’s permission to do so, ownership rights belong to their landlords.

Additionally, even if they do own land, a larger portion of these assets are held “without papers.” While land is fully documented among respondents, over half of individuals who own, or co-own, small enterprises, apartments, or rooms lack adequate documentation for these fixed assets.

They can find it more challenging to sell their assets for the going rate as a result. With their refugee status at risk in any case, the uncertainty leaves them vulnerable at the hands of landlords who may revoke permission of their occupation at any point in time.

Under the current legal framework, any Afghan refugee must be registered to legally occupy or own land. The Punjab Tenancy Act of 1987, for example, grants certain rights to land occupants. Section 5 states that a tenant who, through a grandfather or grand uncle, has occupied land for more than two generations in the male line of descent, and for a period of not less than twenty years while paying no rent, may be classified as an occupancy tenant.

Additionally, a tenant who once owned land and ceased to be a landowner for reasons other than forfeiture to the Government or any voluntary act, and who has continuously occupied the land since ceasing to be a landowner, will also be classified as an occupancy tenant.

This category includes an individual who, in a village or estate where they settled alone or were settled by the founder as a cultivator, has occupied land since 1868, and has continuously done so since that date, or who, being the jagirdar of the estate or any part thereof where the occupied land is located, would also be classified as an occupancy tenant.

If an individual falls within any of these criteria, they would have a right of occupancy in the land so occupied. Furthermore, a tenant who proves that they have continuously occupied land for thirty years without paying rent would also be presumed to be an occupancy tenant.

The status of an occupancy tenant would thus protect Afghans from being evicted from their homes, unless the grounds for eviction as set out in Sections 39 and 40 of the 1887 Act are met. This protects Afghan refugees from forced eviction, but if any remain undocumented, this protection may be overridden, and they would no longer be considered occupancy tenants

Minahil Ali

Minahil Ali

The author is an advocate of the high courts, founding partner at Lex Mercatoria, and visiting faculty at Bahria University’s Law Department.

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