Pakistan: Whether the Penal Code, Passport Act 1974 and Emigration Ordinance 1979 contain provisions regarding returning nationals who are failed refugee claimants; amendments, if any, to the Passport Act and Emigration Ordinance; interview and detention of failed Pakistani refugee claimants by the Federal Investigative Agency (FIA) upon their return to Pakistan; possibility of punitive measures against returning nationals

There are no provisions in the Pakistani Penal Code, Passport Act 1974 and Emigration Ordinance 1979 regarding returning nationals who are failed refugee claimants (UN 11 June 2003; Political and Defense Consultant 19 June 2003; Barrister at Law 12 June 2003). The Human Rights Commission of Pakistan (HRCP) stated in correspondence to the Research Directorate that to its knowledge "there have been no major changes" to the Passport Act and Emigration Ordinance (2 June 2003). However, "there are provisions in respect of those entering the [c]ountry without passports who can be arrested under the Passport Act and proceeded under the Criminal Procedure Code" (ibid.).

In regards to entering the country with a passport, the office of the United Nations High Commissioner for Refugees (UNHCR) in Islamabad provided the following information from the Passport Act 1974:

– Prohibition of departure from Pakistan without [a] Passport, etc.

No Citizen of Pakistan shall:

a) depart from Pakistan by any means what[so]ever unless he is in possession of a passport...

b) visit a foreign country unless his passport is valid for such country.

Punishment for contravention of section 3 above.

A citizen of Pakistan who is of the age of twelve years or more shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both, if he -

(a) contravenes or attempts to contravene or abets the contravention of any of the section 3; or

(b) enters or attempts to enter Pakistan by any means whatever without being in possession of a passport or otherwise than at such port or place, or by such route, as may be prescribed.

7. Power of arrest, seizure, etc. (1) Any police officer not below the rank of Sub-Inspector, and any officer of Customs empowered by general or special order of the Federal government in this behalf, may arrest without warrant any person who has contravened, or against whom a reasonable suspension exists that he has contravened any provision of this Act (UN 11 June 2003).

The UNHCR added, in subsequent correspondence, that it is not aware of the extent or the commonality of charges and convictions against returning nationals for breaches of the aforementioned legal provisions (22 June 2003).

Working with the Inner Temple, in London, one of four "unincorporated associations" that "play a central role in the recruitment, training and professional life of barristers [and] call[s] candidates to the bar of England and Wales" (Inner Temple Library n.d.), a barrister at law who is also an advocate of the Supreme Court of Pakistan and the High Courts of all the provinces with over 38 years at the bar indicated in correspondence to the Research Directorate that

Yes, charging returning nationals is a recurring theme [in the] news. Only 3 [or] 4 days ago I read either in the daily Dawn or The News that a number of persons returning had been hauled up at Lahore airport by FIA [Federal Investigative Agency] and were being charged. As regards convictions, one cannot make a definitive statement unless police or Court records are checked out ... . I am ... sure that in a number of such cases some persons do manage to get away from prosecution by paying [the authorities] bribe-amounts which these poor people get by selling their assets like womenfolk's jewellery or their land, etc.

... it is not unusual to read such news, i.e. returnees being detained and charged every now and then at least once a week in the newspapers and sometimes more often (21 June 2003).

According to the barrister, FIA "does not interview all nationals returning to Pakistan. It detains and interviews those persons who are alleged to have violated any law in respect of travel/visit to a foreign country, e.g. traveled on fake travel documents or entered a country without [a] valid visa, etc." (Barrister at Law 12 June 2003). The UNHCR office in Islamabad provided the following similar information in correspondence to the Research Directorate:

FIA only interviews those nationals who are wanted by the government or involved in any criminal, unlawful or anti-state activities. It depends upon the nature of the offence and whether the person concerned had departed due to fear of arrest for preventing any legal action lodged against him for commission of any culpable offence like murder, treason, drug trafficking, loan default or to be a proclaimed offender, etc. Then, a person is normally arrested and handed over to [the] Federal Investigation Agency (FIA) to be dealt [with] according to [the] law for [the] respective offence. In case[s] [where] a person was just an illegal migrant, etc. and has [a] return visa/ticket or [is] not found guilty of being involved in any kind of anti- government activities, political activities, or any crime[,] he/she is released after a formal investigation and there is no serious consequences for him (UN 11 June 2003).

The HRCP indicated that the FIA "are given a list of deported persons and may interview those they believe [to] have any involvement in criminal activity in the country" (2 June 2003). The HRCP went on to state that "Pakistanis entering another country illegally may be detained on their return, but are generally released within a few days" (ibid.).

However, the barrister contended that the FIA has a "history and tradition" of detaining people for "too long" when not warranted, making them to visit and re-visit FIA offices while keeping them to waiting "for hours" before allowing them to see FIA personnel (12 June 2003).

In correspondence with the Research Directorate, a Pakistan-based political and defense consultant with a doctorate degree in international relations and political science who has written two books on Pakistan and, until 2001, was a Professor of Political Science at Punjab University in Lahore, Pakistan (Harvard 17 Mar. 2001), provided the following information about the FIA:

Pakistanis returning from abroad are not interviewed by the FIA. You pass through passport control and customs and then leave. However, if a person is deported by a foreign country for any reason (overstay, passport and visa fraud, involvement in a crime in the host country) and formally handed over to Pakistani authorities, the FIA/relevant authorities would undertake an inquiry. If found to have forged [a] passport/visa or [committed] any other illegal activity, he/she can be charged and presented to a court of law. All deportations are inquired into (19 June 2003).

If a person returns to Pakistan quietly after having failed to get a refugee status elsewhere, he/she faces no problem in returning to Pakistan. However, if a failed applicant for refugee status is handed over by the country concerned to Pakistani authorities, Pakistani FIA/relevant authorities would question such a person (19 June 2003).

... when a Pakistani national is deported by a foreign government and handed over to Pakistani authorities, the first thing the Pakistani authorities check is if he/she travelled on [a] forged passport and fake visa. If that is the case, they do two things. First, they would like to know where and how did that person get the forged passport or visa. They would like to know about the travel agent or any other person who facilitated his/her departure. Second, the authorities can file a criminal case in a lower court for having forged travel documents. Sometimes newspaper[s] publish news that a person has been sentenced to imprisonment for a couple of months for travel document fraud. ...

If a person is deported by a foreign government but not formally handed over to Pakistani authorities, they would hardly know about the case and the person can quietly return to Pakistan (23 June 2003).

There is no standard interview procedure employed by the FIA when interviewing returning nationals, including those who are failed refugee claimants (UN 11 June 2003; Barrister at Law 12 June 2003).

According to a news report published in Dawn, the Personal Identification Secure Comparison and Evaluation System (PISCES) has been installed at all major airports in Pakistan (9 Dec. 2002). Through this system, "immigration counters at the airports [which are operated by FIA personnel] have cameras which automatically take photographs of people leaving and entering the country" and according to the article, FIA immigration officers have asked travellers "to move back and position themselves in such a way so that a camera placed at the counter could take their photograph" (Dawn 9 Dec. 2002).

According to the barrister,

No punitive measure is taken against failed refugee claimant[s] unless FIA official[s] [are] able to find some lapse or default on the part of [the] returning national['s] ... documentation. The life of an individual deportee, and certainly that of a person guilty of [a] crime overseas, however, is made horrible by FIA/other agencies. Criminal cases are instituted again[st] them which linger on for years without any progress or decision, evidence is not brought to Court by prosecution and sometimes even the investigation officer does not appear in Court in spite of summons by [the] Court, causing adjournments and harassment. At times [the] Court has to issue bailable warrants to arrest the investigation officers and bring [them] to Court, but this is rare (12 June 2003).

For information on the documentation issued by Canadian authorities to failed refugee claimants, please refer to PAK41512.E of 15 May 2003.

Information provided by the UNHCR office in Islamabad on the possibility of punitive measures against returning Pakistani nationals is as follows:

Normal practice in Pakistan is that the person being deported from any country is handed over to immigration authorities for necessary action and later can be released after completion of formalities. Usually, the deporting country claims the cost of [the] air ticket, if its carrier is used. In case[s] [where] the concerned person pays ... he is released if not involved in any other case requiring penal action.

Generally, there is no punitive action for failed refugee claimants; nonetheless it has to be seen in each case ... what reasons [the returning national] had left the country upon which action will be decided under the law.

If a Pakistani national committed a crime overseas, [the] Pakistan Penal Code illustrates as follows:

– Extension of Code (Penal Code) to Extra-Territorial offences:

The provisions of this code apply also to any offence committed by:

(1) Any citizen of Pakistan or any person in the service of Pakistan in any place without and beyond Pakistan. (The word "offence" in this section includes every act committed outside Pakistan which, if committed in Pakistan, would be punishable under the law and can be triable [sic] in the following ways:

– By handing over the offender to that country for trial where he committed the offence.

– He may be tried in Pakistan.)

(In the first case the practice is known [as] "Extradition" and in the second it is called "Extra-Territorial Jurisdiction.")

However, there will be no punitive action in Pakistan [for] the crime committed abroad, if the crime in question is not considered a crime under Pakistani laws (UN 11 June 2003).

According to the barrister,

... failed refugees are not considered to have 'spoken out' against the Pakistani [g]overnment unless ... they have leveled serious unsubstantiated allegations publicly against the Government ... . Such persons would, ... be accused persons ... and they would most likely be arrested on arrival" (12 June 2003).

The barrister went on to state that "returnees who have made no such statements will go home after arrival without any hassle" (ibid.).

The UNHCR office in Islamabad, however, stated that, "depend[ing] upon the nature and expression of political opinion expressed against the government and which is known to the authorities," Pakistani authorities may consider returning nationals who are failed refugee claimants to have spoken out against the Pakistani government (UN 11 June 2003). In elaborating on this possibility, the UNHCR made reference to the following section of the Pakistan Penal Code:

Sec 123 A. (1) ...

Whosoever, within or without Pakistan, with intent to influence, or knowing to be likely that he will influence, any person or the whole or any section of the public, in a manner likely to be prejudicial to the safety of Pakistan, or to endanger the sovereignty of Pakistan in respect of all or any of written, or by signs or by visible representation, condemn the creation of Pakistan by virtue of the partition of India which was effected on the fifteenth day of August, 1947, or advocate the curtailment or abolition of the sovereignty of Pakistan in respect of all or any of the territories lying within its borders, whether by amalgamation with the territories of neighbouring States or otherwise, shall be punished with rigorous imprisonment which may extend to ten years, and shall also be liable to fine ... (ibid.).

According to the political and defense consultant,

If a person returns to Pakistan quietly after being denied refugee status, nothing is expected to happen. If such a person is deported and handed over to Pakistani authorities, the person will face preliminary inquiry to determine if he has violated Pakistani laws. If a person's refugee status case gets a lot of media publicity, the government will inquire into it. However, there is no law that can be invoked against a person for applying for refugee status elsewhere.

A Pakistani denied refugee status can get into trouble on return if there are criminal cases registered against him/her in Pakistan. The FIA/Police can arrest such a person on arrival at the port of entry (if they get prior information of his return) or later on as they come to know of his/her return (19 June 2003).

For additional information on the interviews and detention of failed Pakistani refugee claimants by the FIA upon their return to Pakistan, as well as information on the removal of failed Pakistani refugee claimants from Canada, please refer to PAK41512.E of 15 May 2003.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Barrister at Law, Inner Temple, London. 21 June 2003. Correspondence.

_____. 12 June 2003. Correspondence.

Dawn [Karachi, in English]. 9 December 2003. "Features: Can We Take Your Picture?" [Accessed 26 June 2003]

Harvard Law School. 17 March 2001. "From the Precipice of War to the Path of Peace: A Symposium on Kashmir Conflict - Hasan-Askari Rizvi." Human Rights Program. [Accessed 24 June 2003]

Human Rights Commission of Pakistan (HRCP). 2 June 2003. Correspondence received from the Joint Director.

Inner Temple Library, n.d. "Welcome to the Inner Temple Library." [Accessed 16 June 2003]

Political and Defense Consultant, Lahore, Pakistan. 23 June 2003. Correspondence.

_____. 19 June 2003. Correspondence.

United Nations (UN). 22 June 2003. United Nations High Commissioner for Refugees (UNHCR), Islamabad. Correspondence received from an officer of the Legal Section.

_____. 11 June 2003. Correspondence received from an officer of the Legal Section.

Additional Sources Consulted

Bureau Chief, Peshawar Office, The Nation [Peshawar, Pakistan]

The Embassy for the Islamic Republic of Pakistan, Ottawa, did not respond to a letter requesting information concerning amendments to the Passport Act and Emigration Ordinance, its application, and the interview and detention by the FIA of Pakistani nationals returning to Pakistan, within time constraints.

IRB Databases

A Pakistan-based lawyer and former representative of, and legal advisor for, the United Nations High Commissioner for Refugees did not respond to a letter requesting information within time constraints.

Refugees International

University of Peshawar, Human Rights Studies Centre, did not respond to a letter requesting information within time constraints.

World News Connection

Internet sites, including:

Amnesty International

Asylum Law

BBC

Danish Immigration Service

European Country of Origin Information Network

The Herald [Karachi]. Oct. 2002 to Apr. 2003

Human Rights Watch

Migration News. Jan. 2001 - Apr. 2003

Norwegian Refugee Council

Pakistan Law Review

Pakistan News Agency

Refugees International

Relief Web

United Kingdom, Immigration and Nationality Directorate

United Nations High Commissioner for Refugees

United States Committee for Refugees

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