The IHC rules that a person born in Pakistan has the legal right to Pakistani citizenship

Lahore: A recent judgment of Islamabad High Court has opened the door for thousands of Afghans who were born in Pakistan following the migration of their families in the 1980s due to the Soviet Union invasion, but were denied citizenship in violation of law.

Chief Justice Athar Minallah of the Islamabad High Court (IHC) ruled that a person born in Pakistan, irrespective of his parents’ nationality, accrues a legal right to citizenship and just needs a birth certificate to be termed a Pakistani and has a claim to citizenship.

According to him, Pakistan is one of the thirty nations that immediately grants citizenship to everyone born on its territory, subject to the requirements that are expressly stipulated in the applicable law. He emphasised that this right was founded on the concept of “jus soli,” or the law of the earth.

A 24-year-old Afghan, Fazal Haq, had petitioned IHC seeking Pakistani citizenship who was born in Pakistan.

The IHC CJ noted that a large number of countries had altered their own legal systems, including France in 1993 and the United Kingdom in 1983. But in Pakistan, Section 4 of the Citizenship Act of 1951 has not been changed or reformatted.

Therefore, he said, birthright citizenship cannot be denied in Pakistan unless the exceptions specifically mentioned in the Act of 1951 are applied.

The chief justice said, “Our law is likewise bound to confer citizenship to every kid born here, just like laws in countries such as America and others.”

The court remarked that citizenship is given at birth in many countries, and it is also written in Pakistan’s laws and denial the same to Afghans would tantamount to discrimination, prohibited under the constitution.

Justice Minallah directed NADRA to keep this principle in mind and also ordered the interior ministry to complete the legal process

The interior ministry’s counsel assured the court the ministry would immediately verify the birth certificate of the Afghan. Muhammad Ghafran is a native of Peshawar and is presently enrolled at London to get his PhD but he is also facing the same difficulties.

Ghafran is also a University of London MPhil graduate. He spent some time working in Pakistan before returning to London to finish his academic education.

Although she was born in Peshawar, his wife is Afghan. For the past 30 years, his wife’s family has also resided in Peshawar.

Ghafran wants to take his wife and kids to London but is concerned because they don’t have passports.

“Since my wife was born here and has never visited Afghanistan in her life, she does not hold an Afghan passport, according to Ghafran.

They have a unique card that NADRA only issues to Afghan refugees. The marriage certificate and Pakistani passport are required in order to take them.

When Ghafran first visited the Union Council, he was informed that NADRA could not issue a marriage certificate on an Afghan citizen card.

“This is solely to inform you that your wife is a registered refugee from Afghanistan; no more information can be provided.

Ghafran said that he became more worried because now he could not even get cards and passports for his children unless his wife had a Pakistani passport or identity card.

“I can’t make Form B for the children, nor can they make a passport because my wife doesn’t have a passport or a Pakistani identity card, and she can’t go to Afghanistan to make a passport for herself.”

According to Ghafran, he has been away from his children and wife in London for almost three months. “I don’t see any way to solve this problem.”

He said, “Now I can’t even send my wife to Kabul because I am here and passports are not so easy to get in Kabul.”

However, he was extremely excited over the judgment of IHC and said: “I was making my efforts and looking at the Pakistani immigration laws etc. but the laws required that the wife must have a Pakistani passport.

“Since the wife does not have Pakistani documents, now she is not eligible for a health card in Khyber Pakhtunkhwa, he said, adding that his worries ended by Justice Athar Minallah

“My wife has an Afghan refugee card due to which she and the children cannot benefit from the health card.”

Like Ghafran, there are many Pakistanis who have married Afghan women or Afghan men to Pakistani women and all of them are facing the same problems as Ghafran. But Justice Athar Minallah’s order as well as of Peshawar High Court order would ease their difficulties.

What is Pakistani Citizenship Law?

Regarding citizenship in Pakistan, there is ‘Pakistan Citizenship Act 1951’ under which there are provisions regarding the definition of ‘Pakistani citizen’.

A citizen of Pakistan under this Act shall be one who was born on the territory of Pakistan after August 14, 1947 and has not taken up permanent residence in any other country after that date.

However, this provision also states that at the time of birth, the parents of any person have not acquired the citizenship of any other country and if so, that person will not be considered a citizen of Pakistan.

Similarly, under the same act, a person will be considered a citizen of Pakistan, whose parents are Pakistani citizens at the time of the coming into force of the act.

What do the experts say?

Umar Ijaz Gillani, a lawyer at the Islamabad High Court, pleaded in the court that the Afghans who were born in Pakistan are citizens by birth and Justice Minallah admitted that under the Pakistani every child born on Pakistani soil will be a Pakistani citizen.

Mr. Gillani added, “After the partition of India, in 1951, the government of that time has formally passed this law in the parliament under which any child born in Pakistani soil will be considered a Pakistani citizen and they will have the same rights.” which are available to any citizen.’

Similarly, he said regarding the marriage of Afghan women to Pakistani men and Pakistani women to Afghan men that the civil law also states that if a Pakistani man marries a foreign woman, his wife can get Pakistani citizenship.

Umar Gilani said, “As long as the marriage between the two of them is established, then the foreign woman will get Pakistani citizenship, while their children will also get Pakistani citizenship.” He, however, said that if a Pakistani woman marries a foreigner, it is clear in this law that she will get citizenship, but in this law, regarding children, it is necessary that if any of the parents of a child is a Pakistani citizen, you can get Pakistani citizenship.

Saeed Qamar, a human rights activist, said with more than 40 years having passed since the Soviet invasion, the concept of who is Afghan has become fuzzy to say the least. In subsequent years, as families settled in and grew; and more marriages and births took place, this initial (likely) exaggeration was almost certainly offset, however. The census of 2005 did not reach many Afghans who were scared of talking to the authorities and preferred to lie low.

In 2021, according to Nadra, there were 2.8m Afghans in Pakistan; 1.6m of whom hold Proof of Registration (POR) cards identifying them as having been registered with the UNHCR. The rest hold ACCs or Afghan Citizen Cards, a form of documentation launched in 2017 to cover Afghan migrants who were essentially undocumented.

After the Taliban takeover of the war-torn country in August 2021, some 250,000 additional Afghans took shelter in Pakistan.

In 2018, the former Prime Minister Imran Khan had announced that the Afghan refugees who are born and raised here will be given Pakistani citizenship because according to him, this happens all over the world.

Imran had said at that time: “They are also human beings and for the last 40 years we have deprived them of identity cards and passports.”