In moments of geopolitical upheaval, law is tested not in theory but in its moral stamina. Few questions expose the structural limits of our legal order more starkly than this: what happens when a person fleeing persecution crosses into Pakistan without a visa and asks not for opportunity, but for survival?
Pakistan hosts one of the largest refugee populations in the world. Yet it does so without a domestic asylum statute. There is no Refugee Act. No codified refugee status determination process. No legislative mechanism governing the treatment of asylum seekers pending the determination of their claims. The consequences of this omission have been profound, not merely administrative, but constitutional.
The Foreigners Act and the Criminalisation of Flight
In the absence of an asylum framework, the principal statute that governs the entry and presence of non-citizens is the Foreigners Act, 1946. Section 14(2) criminalises illegal entry into Pakistan and carries severe penalties, including imprisonment.
For an asylum seeker who has crossed a border to escape persecution, this creates a paradox. The very act of seeking refuge, often undertaken in urgency, without visa formalities, exposes the individual to prosecution. The legal system, instead of recognising distress, defaults to enforcement.
The Islamabad High Court has confronted this tension directly. In one matter involving an Afghan national who entered Pakistan following the 2021 regime change in Afghanistan, the Court noted that there exists no domestic legal framework regulating the treatment of asylum seekers while their claims are processed by UNHCR. In practice, asylum seekers pending verification had been lodged in prisons, treated procedurally as accused persons under criminal law.
This is not a theoretical concern. It is a structural one. Without an asylum regime, immigration control mechanisms fill the vacuum.
Constitutional Guarantees Apply to “Every Person”
The judiciary has responded by turning to first principles.
Articles 9 and 14 of the Constitution guarantee the right to life, liberty, and dignity to “every person” for the time being in Pakistan, not merely citizens. In granting bail to an Afghan asylum seeker who had been detained under the Foreigners Act, the Court held that fettering her liberty in a penitentiary, once her status as a legitimate asylum seeker had been confirmed by the Ministry of Interior and UNHCR, was incompatible with constitutional guarantees.
This constitutional orientation was developed more fully in a subsequent judgment where the same petitioner sought quashment of the FIR after being granted asylum by Australia. The Court held that Section 14(2) of the Foreigners Act cannot be treated as a strict liability offence in cases where entry was motivated by a bona fide fear for life and liberty. Seeking refuge to preserve one’s life is not an “illegal purpose” within the meaning of the statute.
The FIR was quashed, and the Ministry of Interior was directed to issue an exit permit forthwith.
These decisions are significant not because they rewrite immigration law, but because they reaffirm constitutional supremacy. The absence of legislation does not nullify fundamental rights.
International Law and the Doctrine of Incorporation
Pakistan is not a signatory to the 1951 Refugee Convention. However, it is a party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT). The courts have repeatedly affirmed that international obligations consistent with domestic law may be incorporated through interpretation.
In interpreting the Foreigners Act, the Islamabad High Court invoked principles such as non-refoulement and freedom of movement, drawing upon international instruments as interpretative aids. The Court emphasised that municipal law should not be read in a manner that contradicts Pakistan’s treaty obligations where harmonious interpretation is possible.
This approach reflects a judicial understanding that immigration control cannot be divorced from human rights obligations. Even in the absence of a domestic refugee statute, international norms inform constitutional interpretation.
Administrative Uncertainty and Visa-Based Vulnerability
In more recent proceedings involving UNHCR-registered asylum seekers awaiting U.S. resettlement, the High Court directed authorities to decide pending visa renewal applications in accordance with law and to refrain from harassment so long as valid visas subsisted. The relief was procedural, not structural.
This signals an emerging pattern. Where refugee status is pending, and no third-country resettlement has materialised, the asylum seeker’s security increasingly hinges upon visa compliance. Without statutory protection, visa expiry exposes individuals to detention, deportation, or administrative vulnerability.
The law remains reactive rather than systemic.
The Structural Gap
The courts have repeatedly observed that Pakistan lacks a statutory asylum mechanism and relies upon UNHCR through a cooperation agreement to conduct refugee status determination. While this arrangement has functioned pragmatically, it does not substitute for domestic legislative clarity.
The consequences of this vacuum are visible:
- Asylum seekers may be arrested under criminal law for illegal entry.
- There is no codified procedure for voluntary reporting at the point of entry.
- No statutory lodging framework exists pending determination.
- Exit permits may be withheld due to pending criminal proceedings.
- Refugees must resort to constitutional litigation to secure basic relief.
In one judgment, the Court explicitly urged the Federal Government to frame mechanisms enabling refugees to voluntarily report, to lodge them outside prison settings, and to withdraw prosecutions once refugee status is verified. This was not judicial activism; it was constitutional necessity.
A Question of Legal Maturity
A nation’s legal maturity is measured not only by how it regulates its borders, but by how it treats those who arrive at its threshold in fear.
The current landscape places asylum seekers in a precarious position: dependent on judicial intervention rather than statutory entitlement. Each case becomes a constitutional petition. Each individual must litigate liberty.
The absence of an asylum framework does not absolve the State of responsibility. It merely transfers the burden to the courts.
Pakistan has historically demonstrated generosity toward refugees. What is required now is legislative coherence, a statutory asylum regime that harmonises immigration control with constitutional guarantees, defines procedures for status determination, ensures non-detention alternatives, and provides clear pathways for safe passage where third-country resettlement is granted.
Until such a framework is enacted, constitutional courts will continue to act as the guardians of dignity in a space where legislation has yet to speak.
The law should never become a trap for those fleeing persecution. It must remain what the Constitution promises, an instrument of protection, not punishment.
Case law analysis
Primary Cases Discussed
- Rahil Azizi v. The State Misc. No. 536-B of 2022 Islamabad High Court (Judicial Department) Order dated 21 June 2022 Per Babar Sattar J. (Post-arrest bail under Section 14, Foreigners Act, 1946; recognition of constitutional protection for asylum seeker pending UNHCR determination)
- Rahil Azizi v. The State & others Writ Petition No. 1666 of 2023 Islamabad High Court Judgment dated 19 June 2023 (reasons released 18 August 2023) Per Babar Sattar J. (Quashment of FIR under Section 14(2), Foreigners Act, 1946; interpretation of “illegal purpose”; incorporation of ICCPR, CAT; directions for exit permit)
- Muhammad Shah Arman and others v. Federation of Pakistan and others Writ Petition No. 4013 of 2025 Islamabad High Court Order dated 6 October 2025 Per Inaam Ameen Minhas J. (Directions regarding visa renewal and protection from harassment of UNHCR-registered asylum seekers)
A careful reading of the three High Court judgments on ASYLUM listed above reveals a judicial system grappling with the tension between executive immigration control and constitutional-humanitarian obligations. Taken together, they chart the trajectory of an increasingly stringent enforcement environment, while simultaneously delineating the contours of constitutional resistance available to Afghan refugees and other asylum seekers.
The first matter, concerning post-arrest bail in Crl. Misc. No. 536-B/2022, reflects the immediate aftermath of the August 2021 regime change in Afghanistan. The petitioner, an Afghan national, had entered Pakistan without a visa and was charged under Section 14 of the Foreigners Act, 1946. The Court recorded that there existed no statutory domestic framework regulating asylum seekers in Pakistan and that, pending UNHCR processing, such individuals were being lodged in jails. This fact alone is telling. The absence of an institutional mechanism meant that individuals fleeing persecution were treated procedurally as criminal offenders rather than as persons of concern under international protection norms.
Justice Babar Sattar’s order recognised that such incarceration, in light of UNHCR certification, violated Articles 9 and 14 of the Constitution, which guarantee liberty and dignity to “every person” for the time being in Pakistan. The Court admitted the petitioner to bail and directed the Ministry of Interior to create a custodial arrangement outside prison walls. Significantly, it required the Ministry to file a comprehensive report and, if necessary, to establish an institutional framework for asylum seekers. This was an early judicial signal: enforcement of the Foreigners Act cannot eclipse constitutional protections.
The second judgment, W.P. No. 1666 of 2023 (Rahil Azizi v. The State & others), is jurisprudentially more profound. Here, the petitioner had not only been recognised by UNHCR but had been granted asylum by Australia. Yet, the criminal FIR under Section 14(2) of the Foreigners Act remained pending, obstructing issuance of an exit permit. The Court undertook a meticulous examination of mens rea, international law incorporation, and constitutional guarantees.
It held that Section 14(2) cannot be construed as a strict liability offence in cases where entry into Pakistan was motivated by a bona fide fear for life and liberty. The judgment explicitly recognised that seeking refuge to save one’s life is not an “illegal purpose” within the meaning of the statute. The Court drew upon ICCPR, CAT, and Article 31 of the 1951 Refugee Convention as interpretative aids, even though Pakistan is not a signatory to the Refugee Convention, invoking the doctrine of incorporation.
Most crucially, the FIR was quashed and the Ministry of Interior directed to issue an exit permit forthwith. The Court went further and advised the executive to frame SOPs under Sections 169, 173, or 494 Cr.P.C. to withdraw prosecutions once refugee status is recognised. This represents a doctrinal shift: asylum seekers are not criminals; the State must recalibrate its prosecutorial posture once refugee status is verified.
The third matter, W.P. No. 4013/2025 (Muhammad Shah Arman and others v. Federation of Pakistan), reflects a later and more restrictive phase. Here, the petitioners were UNHCR-registered asylum seekers awaiting U.S. resettlement and sought extension of visas and protection from harassment or deportation. The relief granted was notably restrained. The Court directed authorities merely to act in accordance with law and to refrain from harassment so long as valid visas subsisted, and to decide pending visa renewal applications expeditiously.
There was no expansive constitutional analysis, no quashment of proceedings, no structural directions.
This narrowing of relief suggests an evolving administrative climate where visa compliance has become central. The earlier judicial sympathy toward those caught in a legal vacuum has gradually yielded to procedural containment. The emphasis has shifted from constitutional invalidation of criminal process to administrative regularisation through visa extensions.
When read together, these judgments demonstrate three realities.
First, the legal landscape has undeniably hardened. The Government of Pakistan expressed “disquiet” over UNHCR’s issuance of asylum-seeker certificates and eventually discontinued such certification pending approval.
Visa enforcement, exit permit controls, and criminal FIRs under Section 14 are being deployed more systematically.
Second, Afghan refugees and illegal entrants have relied primarily on three legal remedies:
(i) Post-arrest bail invoking Articles 9 and 14 of the Constitution;
(ii) Petitions under Section 249-A Cr.P.C. to terminate criminal proceedings where no possibility of conviction exists;
(iii) Constitutional writ petitions under Article 199 seeking quashment of FIRs, directions for visa renewal, protection from deportation, and issuance of exit permits.
Third, the judiciary has recognised non-refoulement principles indirectly through constitutional interpretation and treaty incorporation. Even in the absence of a domestic refugee statute, courts have harmonised the Foreigners Act with constitutional guarantees and Pakistan’s ICCPR and CAT obligations. The critical doctrinal insight is that enforcement statutes must be interpreted purposively, not punitively, when life and liberty are at stake.
The deeper legal narrative here is one of institutional discomfort. The executive prefers immigration control through the Foreigners Act. The judiciary, invoking constitutional morality, insists that enforcement cannot degenerate into criminalisation of survival. Refugees have sought safety not through legislative protection, since none exists, but through constitutional adjudication. Their “safe passage” has been secured not by statute but by writ.
In a civilised constitutional order, the law is not a snare but a shield. These judgments reaffirm that even a foreigner without papers remains a bearer of dignity. Yet the increasingly procedural tenor of later orders suggests that judicial patience may not indefinitely substitute for legislative action. The structural remedy remains what Justice Sattar urged: a coherent asylum framework, institutional lodging arrangements, and prosecutorial withdrawal mechanisms.
Absent that, each refugee must continue to litigate individually for liberty, exit, or extension, a precarious dependence on constitutional grace rather than codified right.
Supporting Precedents Referenced in the Judgments (Doctrine of Incorporation & International Law)
Messrs Najib Zarab Ltd. v. Government of Pakistan PLD 1993 Karachi 93 (Sindh High Court , doctrine of incorporation of international law)
Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026 (Supreme Court of Pakistan , use of international law in interpretation)
Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 (Supreme Court , constitutional interpretation and international norms)
Human Rights Case No. 29388-K of 2013 PLD 2014 SC 305 (Supreme Court , application of international human rights principles)
Sadia Jabbar v. Federation of Pakistan 2018 PTD 1746 (Sindh High Court , preference for interpretation consistent with treaty obligations)
Mumtaz Bibi v. Qasim and others PLD 2022 Islamabad 228 (Islamabad High Court , summary of incorporation doctrine)
Aamir Aman v. Federation of Pakistan PLD 2020 Sindh 533 (Sindh High Court , protection of UNHCR applicants pending determination)
Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379 (Supreme Court , distinction between fundamental rights of “citizens” and “persons”)