MUZAFFARABAD: The Azad Jammu and Kashmir (AJK) High Court on Thursday ruled that Afghan nationals residing in the region, even if subject to repatriation policies, could not be detained or deported without due process of law and directed the government to immediately establish a legal mechanism to regulate such cases.
In a detailed judgment authored by Justice Syed Shahid Bahar, the court disposed of three identical constitutional petitions challenging the detention of Afghan nationals allegedly taken into police custody for repatriation.
The petitioners had contended that despite possessing valid documents and residing lawfully in AJK for decades, they were taken into custody by police without lawful justification and faced imminent deportation. The government, in its reply, maintained that Afghan nationals were being taken into custody as a precautionary measure under a broader repatriation policy, though it conceded that no specific criminal charges had been levelled against them.
The court observed that while foreigners did not enjoy a vested right to permanent residence, they were entitled to legal protection and due process during the validity of their stay. It said that a valid visa conferred a limited but lawful right of residence, and action against a foreign national before its expiry could only be taken on specific grounds such as fraud, violation of visa conditions or threats to public order.
The court further ruled that deportation must be preceded by cancellation of visa, where applicable, and carried out strictly in accordance with law, declaring that arbitrary detention or informal “pushback” without formal legal proceedings was unlawful.
Highlighting gaps in the implementation of the law, the judge noted that under the AJK Foreigners Act, 1952, action against foreign nationals must originate from a duly appointed “civil authority”. However, it was conceded by the government’s law officer that no such authority had yet been formally appointed, rendering the initiation of proceedings legally deficient.
Terming the matter one of “first impression” involving significant constitutional and humanitarian considerations, Justice Bahar underscored that Afghan nationals who had been residing in AJK for decades — in some cases spanning three generations — could not be treated at par with recent undocumented entrants.
The judgment also emphasised that family ties, including marriages between Afghan nationals and local residents, warranted protection under constitutional principles safeguarding family life. It suggested that such cases required a more nuanced and humane approach rather than blanket repatriation measures.
While recognising the government’s authority over matters relating to foreign nationals and repatriation, the court urged it to adopt a structured and differentiated approach. It observed that undocumented entrants could be dealt with strictly in accordance with policy, while long-term residents, including those integrated into local society through family and business ties, required humanitarian consideration. Similarly, cases of visa holders or those with lawful entry documents were to be examined separately, even in instances of overstay.
The court further observed that where deportation was deemed necessary, reasonable time should be afforded to affected individuals to wind up businesses and settle their affairs on a case-to-case basis.
Disposing of the petitions, the court issued key directions to the government, including the immediate appointment of civil authorities in all districts to handle cases under the Foreigners Act, mandatory reporting of arrests to the government within five days, and expeditious, case-by-case decisions regarding the status of detained Afghan nationals.
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