Citizenship law and the migration of 1947

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1947- Refugee status or Migrant status​



One of the most interesting legal question that is heard whenever the advocacy for Afghan Refugee citizenship comes is

If Pakistan could allot Citizenship to the migrants entering Pakistan in 1947 then why can’t it do the same for Afghan Refugee? An interesting question indeed but to answer this question, we must look into the another question which is

Whether Pakistan ever allotted Naturalization to the migrants that traveled into Pakistan? To answer this question we must look into the laws that governed Citizenship during the period of 1947.



Usage of documentation for traveling between states was a common practice since olden and a lot of times residency within the areas that the state claimed or where it charged taxes or conscripted military service, was an indication of state citizenship. The best of thinkers declare that there existed no single definition for citizenship in the olden world.

As the British consolidated their hold on the subcontinent and declared the polity as British India, the growing need of the times and the stability of the empire demanded a citizenship law to be placed in the regions that were part of the British Empire. The region of British India would face such law for the first time in the form of ‘British Nationality and Status of Aliens Act 1915 which came into force on 1st January 1915 and it held that the British subjects would be the following

birth within His Majesty's dominions

naturalisation in the United Kingdom or a part of His Majesty's dominions which had adopted Imperial naturalisation criteria

descent through the legitimate male line (child born outside His Majesty's dominions to a British subject father). This was limited to one generation although further legislation in 1922 allowed subsequent generations born overseas to be registered as British subjects within one year of birth.

foreign women who married British subject men

former British subjects who had lost British subject status on marriage or through a parent's loss of status could resume it in specific circumstances (e.g. if a woman became widowed, or children immediately upon turning 21)




The above allowed for the people of British India to become Subjects of the British empire which was synonymous with as Citizens of the Empire and the law also concerned those born in Princely states as the Indians resident and born in a princely state under the British Raj, or in any other British Protected or Proterate under the British government, held the status of British Protected Person. British protected persons were considered de jure foreigners, but could travel on British-issued passports.

This allowed for the territories of the British India to be governed as citizens as of the British Empire and we see this with taxation and conscription, most famous of which in World War 1.

Till 1947 that was so however then came the Independence Act 1947. The British Empire was cracked and broken with the two world wars and as the events of 1935-1947 saw the British leave India by declaring the birth of two states. Now we must understand that these two states were not independent as such in 1947. They were still dominions and this is clearly seen when the Independence Act 1947 is perused. Allow me to reproduce some of them.



An Act to make provision for the setting up in India of two independent Dominions,



The new Dominions

(1)As from the fifteenth day of August, nineteen hundred and forty-seven, two independent Dominions shall be set up in India, to be known respectively as India and Pakistan.

(2)The said Dominions are hereafter in this Act referred to as " the new Dominions ", and the said fifteenth day of August is hereafter in this Act referred to as " the appointed day ".



This was infact similar to the ‘Statute of Westminister 1931’ which was passed for territories like Canada, South Africa, Newzealand, Australia etc. but not British India. Infact both held the important clause that provided for self-governance and freedom to the states which was



section 2(1):

No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the Law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion



section 4:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.



So by 1947, the two states were dominions of the British Empire under a law similar to the statute of Westminster.



The first Citizenship law in Pakistan was in 1951 and 1952 whereas in India it was in 1955. As the violence of partition reached its apex and the division of British India began, the people fled as Muslims to came to their stated Muslim land and Hindus to their however in the eyes of law this movement was no different than the movement of people within a state and while it’s true that the ethnic composition of the British India made such movements of populace very difficult to absorb however such movement of people was and could not be granted as refugee status in accordance to the ‘Foreigners Act 1946’. In 1947 they were seen as Citizens of the same state and Article 18 Section 3 of the Independence Act held that the laws passed by the British shall stay in place till the dominions passed new laws for citizenship and naturalization. Pakistan continued to use the British laws till 1951.



Now in 1946 Canada passed its own Citizenship laws which brought great concerns to the British as two separate citizenship were being conflicted and in 1947 at a commonwealth meeting in London, it was decided that the dominions of the British Empire would pass their own citizenship laws whilst retaining the elements of old commonwealth laws. To make the British Laws applicable for this new change, the Labor party passed the British Nationality Act 1948 and at the time of the enforcement of this law, both India and Pakistan had no citizenship laws and constitutionally had king George as the head of the country. A toothless head but head of the state never the less.



Under the 1948 Act people who were to have the citizenship of independent and Commonwealth countries continued to be treated under UK law as British subjects. ‘British subject’ was no longer a substantive status but was an overarching term to include Citizens of the United Kingdom and Colonies (‘CUKCs’) as well as citizens of independent Commonwealth countries. The 1948 Act worked on the assumption that citizenships laws of newly independent Commonwealth countries would be enacted and further that they would be recognised under United Kingdom law (indeed Canada had already enacted a citizenship law prior to 1949). But those assumptions were not sustained when it came to the independence of India and Pakistan. As already noted, on independence India and Pakistan did not immediately enact new citizenship laws. Moreover, even when they did, those laws were not recognised in UK law for important nationality purposes



As noted, under the 1948 Act British subject status was acquired by virtue of holding citizenship either of the United Kingdom and Colonies or of an independent Commonwealth country. To reflect the new reality the term ‘British subject’ was made interchangeable with the term ‘Commonwealth citizen’. Thus from 1949 onwards CUKCs and the citizens of independent Commonwealth countries had the status of British subject in common but were in fact citizens of different countries.

However, a number of pre-1949 British subjects did not become CUKCs or citizens of independence Commonwealth countries. Under the 1948 Act they remained British subjects without citizenship and that is a discussion for another time.

1British nationality by virtue of citizenship
(1)Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any enactment for the time being in force in any country mentioned in subsection (3) of this section is a citizen of that country shall by virtue of that citizenship have the status of a British subject.

(2)Any person having the status aforesaid may be known either as a British subject or as a Commonwealth citizen ; and accordingly in this Act and in any other enactment or instrument whatever, whether passed, or made before or after the commencement of this Act, the expression " British subject " and the expression " Commonwealth citizen" shall have the same meaning.

(3)The following are the countries hereinbefore referred to, that is to say, Canada, Australia, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon.



2 Continuation of certain citizens of Eire as British subjects
(1)Any citizen of Eire who immediately before the commencement of this Act was also a British subject shall not by reason of anything contained in section one of this Act be deemed to have ceased to be a British subject if at any time he gives notice in writing to the Secretary of State claiming to remain a British subject on all or any of the following grounds, that is to say—

(a)that he is or has been in Crown service under His Majesty's government- in the United Kingdom ;

(b)that he is the holder of a British passport issued by His Majesty's government in the United Kingdom or the government of any colony, protectorate, United Kingdom mandated territory or United Kingdom trust territory ;

(c)that he has associations by way of descent, residence or otherwise with the United Kingdom or with any colony or protectorate or any such territory as aforesaid.



An interesting thing to note is that by this enactment and the lack of enactment by the parliament of both sides, the citizenship of the people of India and Pakistan was British and till their Citizenship laws were placed they were British citizens.

In 1951, Pakistan passed its own naturalization law to make sure that the people of the country would become citizens of Pakistan and be called as Pakistani rather than the British.



In the Pakistan Citizenship 1951 Section 2 it held

'Commonwealth citizen' means a person who has the status of a Commonwealth citizen under the British Nationality Act, 1948;

'British protected person' means a person who has the status of a British protected person for the purposes of the British Nationality Act, 1948.



Infact it created a situation where there were people within Pakistan and India who were defined as subjects of the Crown but were not citizens of Pakistan or India and that created great problems for these people however this shows that the Pakistan did not receive stateless migrants nor refugees but citizens of an existing legal polity and when Pakistan decided to create its own citizenship, it declared the citizenship of all those that were residents or connected to those that were part of Pakistan.



This is very important in understanding the law of the country for two major reasons.



First that the country named did not allot citizenship to foreign refugee but to the people that were living or connected to Pakistan in 1951 and by doing so it declared that its people were no longer British subjects or British citizens and the movement of one to the other could no longer continue since people still migrated even in 1950 due to their existence as British Subjects rather than their existence as Indian or Pakistani and the moment Pakistan declared its citizens were no longer British subjects, the migrations ceased immediately. Pakistan was not taking in Indian citizens but Subjects of the same polity it was part of.



Secondly that the migration of the British Subcontinent and its natural evolution to the citizenship of their respective domains could not be seen as similar to the Afghan Refugee situation which is covered as both alien and in terms of Foreigners Act 1946.

To bring those two situations together to make a case for Afghan Citizenship would be ignoring the legal and historical facts and the solution to the Afghan Citizenship can only come from actual discourse on the situation with out of the box solutions rather than engaging in whataboutery that is based on shaky grounds at best.


@Joe Shearer @VCheng @Yankeestani @Kaptaan @T-123456 @Saithan @Nilgiri
 

VCheng

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To bring those two situations together to make a case for Afghan Citizenship would be ignoring the legal and historical facts and the solution to the Afghan Citizenship can only come from actual discourse on the situation with out of the box solutions rather than engaging in whataboutery that is based on shaky grounds at best.

However, doesn't the Pakistani Parliament have the authority to amend its Citizenship Law that could grant citizenship to any defined category of persons, if it so chooses?
 

Saiyan0321

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However, doesn't the Pakistani Parliament have the authority to amend its Citizenship Law that could grant citizenship to any defined category of persons, if it so chooses?

Ofcourse. Amending the law is very much within the power of the Parliament to do so and they can if they wish to by amending Section 3 and adding Afghan refugee being born in Pakistan and Imran did announce that but it opened a can of worms and the government that was allied to PTI declared it a bad idea aka Baluchistan government and protests in Karachi and KPK. The limitation is not legislative but societal and political.
 

Kaptaan

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To bring those two situations together to make a case for Afghan Citizenship would be ignoring the legal and historical facts and the solution to the Afghan Citizenship can only come from actual discourse on the situation with out of the box solutions rather than engaging in whataboutery that is based on shaky grounds at best.
This appears to be a very interesting thread but at face value it appears to be motivated to make the Mohajirs "koshur" and Afghan refugees "haram". And that is whataboutery at Nobel prize standards. As I have said often there is thin line between law and politics. The issue in hand is more political than legal.

But it goes to the very heart of Pakistan's existence. If we look through the ISLAM prism and we should if we follow the "Islamic republic" tag and how religion is stuffed in every orifice of Pakistan's polity then surely a Muslim should be automatically allowed into a Muslim state. In Islam, in Sharia, in Sunnah there is only "believers" and "unbelievers" so going by that measue Afghans [if they are Muslim] have as much right to Pakistan as any OTHER Muslim.

I have no issue and indeed I support the idea of secular law, secular politics but as I see often on PDF there is this Pakistani reflex of having " you can't have your cake and eat it too" by peddling Islam and then at same time deny rights to Muslim Afghans. Either Pakistan is regular state like any other or it is a Islamic idealogical state. With one hand you get the chorus "Pakistan ka matlab kya, La Illaha" and on the other hand start using "whataboutery" even if it is legal to deny the Afghans but clasp the UP walllahs. This all seems rather convenient to me.
 
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Saiyan0321

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On Afghan issue i have already written alot on it and the need for amendments whether it is to accommodate the Afghans or to remove them


 

Saiyan0321

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This appears to be a very interesting thread but at face value it appears to be motivated to make the Mohajirs "koshur" and Afghan refugees "haram". And that is whataboutery at Nobel prize standards. As I have said often there is thin line between law and politics. The issue in hand is more political than legal.

Absolutely not. The argument i place is that the law that governed the transition of the Citizens of subcontinent was different to the law that governs Afghans and when supporters of Afghan refugee citizenship make this argument or even afghans themselves, i see them shooting themselves in the foot. There is nothing worse than making a flawed legal argument when making a case and this argumnent that since Indians were given citizenship then why not Afghans is flawed when we enter the realm of legal and their citizenship is also bound to legal limitations.

I highlight the same citizenship nature of Pakistan and India and infact also bring forth argument as to why Pakistan can no longer provide the citizenship cover to the Muslim of Indians because in 1947 they werent seen as muslims in the eyes of law but as British citizens which were transitioned into Pakistan Citizens in 1951. Infact i would say this is a very good argument against those that state that we are the refugee dump of the subcontinent due to the events of 1947. No we are not and are in no legal or social obligation to take in another migration ( If it ever happens) and provide them citizenship because we never did it in the first place.
 

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Absolutely not. The argument i place is that the law that governed the transition of the Citizens of subcontinent was different to the law that governs Afghans and when supporters of Afghan refugee citizenship make this argument or even afghans themselves, i see them shooting themselves in the foot. There is nothing worse than making a flawed legal argument when making a case and this argumnent that since Indians were given citizenship then why not Afghans is flawed when we enter the realm of legal and their citizenship is also bound to legal limitations.

I highlight the same citizenship nature of Pakistan and India and infact also bring forth argument as to why Pakistan can no longer provide the citizenship cover to the Muslim of Indians because in 1947 they werent seen as muslims in the eyes of law but as British citizens which were transitioned into Pakistan Citizens in 1951. Infact i would say this is a very good argument against those that state that we are the refugee dump of the subcontinent due to the events of 1947. No we are not and are in no legal or social obligation to take in another migration ( If it ever happens) and provide them citizenship because we never did it in the first place.

Given the above, what prompted PMIK to openly declare his support for granting Pakistani citizenship to Afghan refugees?
 

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Given the above, what prompted PMIK to openly declare his support for granting Pakistani citizenship to Afghan refugees?

Well its a problem and he most likely found the easier but long term messier solution of adding 3 million people to the country rather than take the concentrated effort to repatriate them. It could be political as well since doing such would allow PTI to break into the PKMAP vote bank and lastly what makes you think that these legal intricacies are known to him.
I doubt people 99.99999999% of the people even know that once upon time they were British Subjects till 1951 or the more funnier one that there was actually a way for Pakistan to retain both its Pakistan citizenship and British citizenship and that was to have their citizenship law recognized by the British law according to the 1948 act ( till 1962 ns 1971) and if the people knew that Pakistan spat on this setup by making sure to pass a very separate Law that did not accommodate commonwealth citizens, they would have blown up the Constituent Assembly and shot everybody in there.
So expecting Imran to know or anybody near him to know this little detail is not wise
 

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Well its a problem and he most likely found the easier but long term messier solution of adding 3 million people to the country rather than take the concentrated effort to repatriate them. It could be political as well since doing such would allow PTI to break into the PKMAP vote bank and lastly what makes you think that these legal intricacies are known to him.
I doubt people 99.99999999% of the people even know that once upon time they were British Subjects till 1951 or the more funnier one that there was actually a way for Pakistan to retain both its Pakistan citizenship and British citizenship and that was to have their citizenship law recognized by the British law according to the 1948 act ( till 1962 ns 1971) and if the people knew that Pakistan spat on this setup by making sure to pass a very separate Law that did not accommodate commonwealth citizens, they would have blown up the Constituent Assembly and shot everybody in there.
So expecting Imran to know or anybody near him to know this little detail is not wise

Are you saying that either he is a political manipulator or too ignorant to understand what he said in this matter?
 

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Are you saying that either he is a political manipulator or too ignorant to understand what he said in this matter?
latter. He turned even his best supporters against him when he announced it and the end result was that he had to backtrack leaving everybody fuming. Everybody. Those that supported his move due to his backtrack and those that opposed his move due to him suggesting such.
 

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Infact i would say this is a very good argument against those that state that we are the refugee dump of the subcontinent due to the events of 1947. No we are not and are in no legal or social obligation to take in another migration ( If it ever happens) and provide them citizenship because we never did it in the first place.
Mohajir community has made sure [don't forget they weild influence far beyond their % in the country and also have cultivated religious groups to provide political firepower as we saw how Ayub Khan or Bhutto were pummeled] in making sure Pakistan is nothing but a cheap Indian Muslim refugee dump.

As I said before your paying to much lip service to the legalities but overlooking the political forces. Is Pakistan as sold as "homeland of Muslims" or not?
 

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@Saiyan0321 I reiterate. This issue is political. Imran made a political statement and NOT legal. Fact is if Pakistan is premised on Islam then why only Urdu speakers are allowed in. Are they halal?
 

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latter. He turned even his best supporters against him when he announced it and the end result was that he had to backtrack leaving everybody fuming. Everybody. Those that supported his move due to his backtrack and those that opposed his move due to him suggesting such.

In other words, PMIK is very well-suited to serve the role he has been assigned. :D
 

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As I said before your paying to much lip service to the legalities but overlooking the political forces. Is Pakistan as sold as "homeland of Muslims" or not?

the legalities are the last shield and sword left in this country to make sure this 'Homeland for Muslims' becomes 'Homeland for us'. Wouldnt stating the citizenship of 1951 to all citizens was a natural process of a new state and not an obligation that Pakistan must undertake every time somebody bombs a muslim country a good way to dent the 'Homeland for Muslim' argument whilst making sure nobody feels alienated?

Do you know how you break a very strong prosecution case? You dent with small arguments and small aspects. One dent at a time and before you know it, there is a hole big enough to break the entire case apart.

Anyhow this is a history fact of legal laws. :D
 

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And what your urdu media will not tell you is vast numbers of mohajirs have continued coming to Karachi through 1970s, 1980s, 1990s, 2000s and continue even now although they have been capped because of the recent security drive. This is the conduit through which RAW infiltrated Karachi. MQM have been conplicit in this. People in power have helped this process. The media covers it and instead all the focus is on "Afghan" when many of them are actually from KPk. These migrants just diffuse with Karachi's huge districts. I think I told you I have a relative in Karachi police. He told me what goes on.

So let me reiterate again. This is a political issue.
 

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@Saiyan0321 I reiterate. This issue is political. Imran made a political statement and NOT legal. Fact is if Pakistan is premised on Islam then why only Urdu speakers are allowed in. Are they halal?

His political statement required a legal solution and the issue is very much legal as well. I am not ignoring the political facets of this issue but i am highlighting the legal facets of this issue because they are the ones that dont get any light on them. Nobody talks about the Supreme Court precedents on this matter or the law.

If they were 'halal' they would be able to jump India and come here anytime they want but they cant because the moment the country declared its citizens Pakistani, it declared that Pakistani was not a leaflet anybody could have
 

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His political statement required a legal solution and the issue is very much legal as well. I am not ignoring the political facets of this issue but i am highlighting the legal facets of this issue because they are the ones that dont get any light on them. Nobody talks about the Supreme Court precedents on this matter or the law.

If they were 'halal' they would be able to jump India and come here anytime they want but they cant because the moment the country declared its citizens Pakistani, it declared that Pakistani was not a leaflet anybody could have

It would be on topic to describe what are the citizenship laws of Pakistan, as they stand currently.

=====================================================

Citizenship of Pakistan
There are three categories of declared citizens of Pakistan including citizens by birth, by descent and by migration, which are briefly mentioned below. (Please see relevant sections of Pakistan citizenship Act, 1951 for details)

(i) Citizens by Birth.
(ii) Citizens by Descent.
(iii) Citizens by Migration.

(i) Citizen by Birth:
Persons who or any of their parents or grand parents were born in the territories now included in Pakistan before the commencement of citizenship Act, 1951 are citizens of Pakistan.
Any person born in Pakistan after the commencement of Pakistan Citizenship Act, 1951 is citizen of Pakistan. Children of foreign diplomats and children of enemy alien born in Pakistan are not included in this category. Persons, who migrated from territories of Pakistan to other areas of Indo-Pakistan sub-continent for permanent stay after March, 1947 shall also be not considered citizens of Pakistan.

(ii) Citizen by Descent:
Children of Pakistanis who are born outside of Pakistan are citizens by descent. If the parent of such child is a citizen by descent himself/herself (as born outside of Pakistan) the child is required to be registered in the nearest consulate or Pakistani mission.
Children born to Pakistani mother and foreign national father, after 18.04.2000, are treated as citizens of Pakistan.

(iii) Citizen by Migration:
The persons who migrated to Pakistan from the territories in the indo-Pakistan subcontinent before the commencement of Pakistan Citizenship Act, 1951 are declared citizens of Pakistan.
 

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It would be on topic to describe what are the citizenship laws of Pakistan, as they stand currently.

Let me post it. I had actually written on it back in 2018


This is what i wrote in 2018. It should have you understand the entire legal laws on it.

INTRODUCTION

The premier Imran Khan on his first visit to Karachi gave a fiery speech worthy of oratory skill which encompassed issues like dams to deforestation. Among those issues he brought forward another issue which is faced by Bengali and afghan migrants/refugees which is citizenship. In plain words he stated that their condition is worsening by the day and the law and order situation such poverty can create must be avoided and the constant limbo they find themselves in must be answered and for this, in bold words that raised many eyebrows, he stated that he would provide citizenship for all children born in Pakistan.

This brought forward an issue in limelight that has been in limbo. What is Pakistan going to do about these aliens which inhabit nearly every district of Pakistan? According to the premier his administration will look to make their children at least Pakistani citizens.


This had, of course, the expected reaction. Many condemned this move and many hailed this move. The Social media and media landscape is slowly filling itself with arguments detailing both pro and cons. However among these arguments many have taken to legal interpretations with many claiming that this will require a bill to amend the current laws of citizenship and many stating that such law already exists and all that awaits is its interpretation.


In this article I would like to bring to light the points and arguments of both sides and how both are wrong and right at the same. To do this we will look into the acts and the case laws that have passed their judgments upon such matters.


In my view citizenship is a grand step that must be taken with complete understanding of the social and economic conditions and requirements of the state yet we must also not forget the legal laws of the land and what they say upon the matter any step without first taking into account the laws that govern the state will lead to a legal crisis that all governments before Imran’s have passed through one way or the other be it containing the powers of a governor general or trying to pass land reform.


CITIZENSHIP

As the arguments heats up many provide example of US and UK. In plainest terms there are two concepts and maxims that run the concept of citizenship.

Jus soli

Jus soli is a Latin term that means ‘Law of the soil’ which is taken as citizenship of any person born into the soil of the state. This form of citizenship concept found itself in UK, an empire that spanned from Asia to the Americas. Thus the citizenship law of UK stated that any person born within the domain of the British Empire would be the citizen of the empire. This was attached to another maxim “protectionem trahit subjectionem, et subjection protectionem” which meant all persons born within the King’s allegiance and subject to his protection. This concept was also adopted by the US law of citizenship and enshrined within the 14th amendment. The principle of “jus soli” was recognized by the United States Supreme Court in the decision announced in 1898 in case 169 U.S. 649 (1898) (United States vs. Wong Kim Ark.), whereby the majority opinion authored by Justice Gray stated as under:-
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim protection trahit subjectionem, et subjection protectionem – and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King…


The case of Dred Scott laid the foundations for such citizenship laws.

the 14th amendment is reproduced as under:-
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge [deprive] the privileges or immunities of citizens of the United States.”

It must be stated that in 1983 the UK parliament did away with the concept of “jus soli”.

India is another country which utilized this concept with its citizenship act of 1955 however with the amendment of 1986 it did away the principle.

Jus sanguine

The principle of jus sanguine means in literal translation as “law of the blood” which is basically citizenship through parental heritage. Meaning that any person born of the citizen of that state can apply for citizenship. Many states like France in early 19th and 20th century did away with jus soli and adopted this form of citizenship.


Pakistan Law

With the principles of citizenship stated let us turn to Pakistan and its law of citizenship.

Citizenship is governed by the Pakistan Citizenship Act 1951

The Act itself is placed on 23 sections which govern the citizenship of all citizens.


I will reproduce a few sections that will cover our discussion.

2.1 'Alien' means a person who is not citizen of Pakistan or a Commonwealth citizen

3.0 Citizenship at the date of commencement of this Act

.—

At the commencement of this

Act every person shall be deemed to be a citizen of Pakistan:-

(a)

who or any of whose parents or grandparents was born in the territory now included

in Pakistan and who after the fourteenth day of August, 1947, has not been

permanently resident in any country outside Pakistan; or

(b)

who or any of whose parents or grandparents was born in the territories included in

India on the thirty-first day of March, 1973, and who, except in the case of a person

who was in the service of Pakistan or of any Government or Administration in

Pakistan at the commencement of this Act, has or had his domicile within the

meaning of Part II of the Succession Act, 1925, as in force at the commencement of

this Act, in Pakistan or in the territories now included in Pakistan;

Or

(c)

Who is a person naturalized as a British subject in Pakistan; and who, if before the

date of the commencement of this Act he has acquired the citizenship of any foreign

State, has before that date renounced the same by depositing a declaration in

writing to that effect with an authority appointed or empowered to receive it; or

(d)

Who before the commencement of this Act migrated to the territories now Included

in Pakistan from any territory in the Indo-Pakistan sub-continent outside those

territories with the intention of residing permanently in those

territories.Proviso_Omitted

by the Pakistan Citizenship Act, V of 1952, and Section

3.


4.0 Citizenship by birth

.—

Every person born in Pakistan after the commencement of this Act

shall be a citizen of Pakistan by birth:


Provided that

a person shall not be such a citizen by virtue of this section if at the time of

his birth: --


(a)

his father possesses such immunity from suit and legal process as is accorded to an

every of an external sovereign power accredited in Pakistan and is not a citizen of

Pakistan; or


(b)

His father is an enemy alien and the birth occurs in a place then under occupation

by the enemy


Now Pakistan recognizes the following forms of naturalization and citizenship which are

· Section 4 which is citizenship by birth

· Section 5 which is citizenship by descent

· Section 6 which is citizenship by migration

· Section 9 through naturalization and section 10 through marriage of a Pakistani Male to a Pakistani women. Not vice versa.

Now section 3.a states that every person born on the soil of Pakistan or if his father or grandfather were born on the soil of Pakistan will be considered a citizens of Pakistan and in accordance to the constitution will be granted all rights of a citizen of Pakistan.


Now many would state that the Act states this and as such all Bengalis or Afghans or anybody born on the soil of Pakistan would automatically get citizenship since Pakistan follows JUS SOLI.


Yet then why have they been not given such citizenship. To know this we will look into the case laws which have interpreted this law and how this interpretation affects and how this law affects refugees.



I will first look into a case placed before Islamabad High Court in 2017 titled Saeed abidi mehmood vs NADRA

FACTS

The petitioner filed instant petition seeking relief stating that he was born in Pakistan and had studied in Pakistan and was studying Law in Pakistan and upon reaching the age of 18 years he had sought the national identity card which was denied by the respondents and thus was denied his constitutional rights as well the rights given to him in accordance to the citizenship act as well as in accordance to the NADRA Act section 10 which states that all citizens of Pakistan will be provided NIC. The respondent had denied the petitioner the NIC on the basis that his parents were Somalian nationals and were non-Pakistanis thus their son was not a Pakistani citizen.


JUDGMENT

The court looked into the matter and passed a judgment on the controversy which was based on the following:

· The court looked into the definition of section 4 where they placed reliance on PLD 2012 Supreme Court 501 (Ghulam Haider and others vs. Murad through Legal Representatives and others) and PLD 2012 Supreme Court 923 (Baz Muhammad Kakar and others vs. Federation of Pakistan through Ministry of Law and Justice and others) and interpreted the statute using the plain language in its simplest form. The interpretation was that the section states clearly that all persons born in Pakistan shall be deemed to be citizens of Pakistan with two exceptions i.e. when his father possesses such immunity, whereby he has not been declared citizen of Pakistan being envoy of an external sovereign power, second father is an enemy alien and birth of child occurs in place of enemy. The petitioner did not fall into the exceptions.

· The court pointed out that this Court while dealing with the question has gone through the process of determining the steps of debates and official reports of Constituent Assembly of Pakistan, in which The Pakistan Citizenship Act, 1951 was discussed and promulgated. The term Citizen has not been defined in any specific manner in the Constitution of Islamic Republic of Pakistan, 1973 although Article 260 of the Constitution provides that citizen means “a citizen of Pakistan as defined by Law”, however, Constituent Assembly of Pakistan as well as the committee at that time consciously did not provide definition of citizen in the Constitution leaving the matter to be decided by the said constitutional legislation, whereby the report of the Select Committee of the Pakistan Citizenship Bill 1950 recorded the following facts:-
“We have taken note of the following facts:
(a) that the Interim Report of the Basic Principles Committee recommends that citizenship, naturalization and aliens should be a subject matter of Laws to be made exclusively by the Central Legislature;
(b) that the Constituent Assembly, in adopting the report of the Committee on Fundamental Rights, accepted the recommendation of the Committee contained in paragraph 2 of Part 1 of the Report to the effect that, subject to their recommendation contained in paragraph 1 of Part 1 of the said Report regarding citizenship at the date of the commencement of the Constitution, acquisition and loss of the citizenship, and all other matters pertaining thereto should be within the competence of the future Legislature of Pakistan;
(c) that a Bill amending the Naturalization Act, 1926, has been introduced into the Constituent Assembly (Legislature) and will, in due course, be considered by the Assembly in that capacity;
And being of the opinion that the law relating to citizenship, naturalization and aliens should not be a part of the Constitution but should be capable of amendment in the same manner as Legislative measures which are not part of the Constitution,
Recommended that the Bill under consideration be not proceeded with in the Constituent Assembly but that a Bill to make provision for citizenship in Pakistan amended so as to conform with paragraph 1 of Part 1 of the Report of the Committee on Fundamental Rights be introduced into the Constituent Assembly (Legislature) as soon as possible.
2. The Bill was published in the Gazette of Pakistan, Extraordinary, dated the 28th September, 1950.”
9. Similarly, Khwaja Shahabuddin the then Minister for Interior, Information and Broadcasting in his speech on 09.04.1951 stated in the Constituent Assembly. Some extracts of the speech are reproduced as under:-
“Sir, the salient feature of the Bill is that citizenship at the commencement of the Bill extends to all persons who or whose parents or grandparents were born in the territories which now comprise Pakistan, but who have not migrated from it on the birth of Pakistan. This implies that persons born in this area who have since then left it, forego all claims to Pakistani citizenship. This loss of citizenship reciprocates the provisions of the Indian Constitution. The right to citizenship after the commencement of the Act shall accrue for reasons of birth, descent, migration and naturalization.
A person whose father is a Pakistani shall be a citizen of Pakistan, if his birth has occurred in a foreign country, he can be a Pakistani citizen only if his birth had been registered at a Pakistan Consulate in that country or at the nearest Pakistan Consulate, or if his father was in the service of the Government of Pakistan at the time of his birth abroad.
A person who has migrated to Pakistan from any of the territories of undivided India, shall become a citizen of Pakistan on his having a domicile of one year. The condition of domicile can be waived by the Central Government generally or in special cases. This acquisition of Citizenship extends to the wife and children of the immigrant.
Any person born in the Indo-Pakistan sub-continent but now living abroad can claim Pakistan citizenship, after a domicile of one year in Pakistan, but the Central Government have power to waive this condition of domicile in any case they deem fit. This privilege extends automatically to all those living abroad on Pakistan Passport irrespective of their period of domicile in Pakistan.
The Central Government can grant Pakistan citizenship to persons who have naturalized under the Naturalization Act of 1926. This relates to persons of foreign nationality who have ordinarily resided here for five years, have an adequate knowledge of any of the principal vernaculars notified by Government, are of good character and by taking an oath of allegiance have become naturalized.
Woman do not take after the nationality of their Pakistani husbands automatically, but only on application, except where they are themselves Commonwealth citizens. The reverse of this is also true, i.e., a Pakistani woman shall not lose her Pakistani status by marrying an alien.”
10. Similarly, on 10.04.1951 Tuesday the debate on the floor of the assembly was moved towards the final amendment of the bill in the following manner by the then Constituent Assembly:-
“Now Sir, under this Pakistani Citizenship Bill, several classes of people can acquire Pakistani citizenship by birth, by descent, by naturalization, by registration and so on and so forth.”
11. On the basis of these extracts, the Constituent Assembly passed by The Pakistan Citizenship Act, 1951, which provides five alternate paths to become citizen of Pakistan, however, a person shall be considered citizen of Pakistan upon meeting any one of the following conditions:-
1. he or she was born of Pakistani soil (Section 4); or
II. he or she was born to Pakistani parents (Section 5); or
III. he or she permanently migrated to Pakistan from any other part of Indo-Pakistan between 13th April, 1951 and 31st December, 1951 (Section 5); or
IV he or she has been granted a certificate of naturalization under Naturalization Act, 1926 (Section 9); or
V. She has married a Pakistani citizen (Section 10)

· The court was pointed to the issue of Afghan refugees where the court held that there existed a difference in its words as such that Court further confirms the said view taken in another case of Peshawar bench PLD 1999 Pesh 18 on an additional reason on the point that any person, who born in Pakistan becomes citizen of Pakistan on plain reading of section 4 of The Pakistan Citizenship Act, 1951 except the refugees, who have already taken up refuge temporarily in Pakistan and as such their stay is recognized under UNHCR. The status of refugees has to be considered under United Nations Convention 1951(came into force on 23.04.1954), which was prepared and debated in the aftermath of second world war mainly on the context of thousands of displaced people in Europe. In 1967 protocol was added to it extending definition of refugees to non-European and to people forced to seek refuge because of events took place after 1945, therefore, this Court has to go through the definition of refugees defined in the said convention, which is as follow:-
“A person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and who is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence…is unable or, owing to such fear, is unwilling to return to it.” The above referred definition gives rise to certain important ingredients of term “well-founded fear of persecution”, therefore, the international convention recognized the status of refugees, although in Pakistan, there is no separate law in this regard but Pakistan being signatory to UN Convention, therefore, any person, who has been declared refugee under UNHCR in Pakistan, is entitled to equal treatment with national of the country vis-à-vis his other rights although some social services have been provided in Pakistan on government level but once a person has been declared refugee he cannot claim benefit under The Pakistan Citizenship Act, 1951 in any manner and his status cannot be converted to any other position except he has been granted freedom of movement, residence permit, protection of law and in some cases entitled for employment in private business and jobs except government authorities. He is also entitled to have medical services and right to education. Except the refugees (especially Afghan refugees) any other person who born in Pakistan shall be considered citizen of Pakistan in terms of section 4 of the act and his case has to be considered under rule 8 of The Pakistan Citizenship Rules, 1952, which reads as under:-
“8. Citizenship by birth.-(1) Any person claiming Citizenship under section 04 of the Act shall apply in form ‘B’ in duplicate to the Authorized Officer in the district where he was born or, if for any reason beyond his control, it is not possible for him to apply to such officer, to the authorized officer, in the District where he is residing at the time of making the application.

· And with that the court accepted the instant petition and ordered NADRA to provide him NIC.

COMMENTS

With the above we have come to know three things.

1. The definition of the statute in section 4 is plain and allows all citizens born in Pakistan on the principle of JUS SOLI which means if any person whose parents are non-Pakistanis is born in Pakistan then he is deemed a citizen of Pakistan.

2. That this Law cannot be applied on Afghan refugees since refugees are registered under the foreigner act and since the person as registered a refugee had attained the rights of a refugee as allotted by the state and UNHCR and the UN convention thus he is not entitled to citizenship as one seeking citizenship must either go through the process of naturalization or must be born within the soil of Pakistan.

3. The distinction was solidified by highlighting the rights of refugees and those of a citizens and how refugees by every definition are temporary of stay and this cannot be transferred into citizenship as well as the court laid down that a long stay of a foreigner in a foreign country does not automatically convert him to be a citizen of the said country unless he acquired nationality by process of law.

These three things laid down explain the law relating to citizenship as well as the right of a refugee and a foreigner.

I would like to bring forth another case law in Peshawar high court.

Ghulam Sanai vs. The Assistant Director, National Registration Office, Peshawar and another

FACTS

The petitioner contended that since his father and he himself have been living in Pakistan for a long time, proven with the provision of sale deeds of property purchased and seek to remain in Pakistan thus are entitled to citizenship and thus the revoked NIC should be reinstated. The respondent pointed out that to obtain NIC the petitioner had provided false information and when the falsity came to light, the NIC were revoked. The petitioners pointed out the section 3,4,5 of the citizenship act of 1951.

JUDGMENT

The court perused the record and afforded the judgment that Sections 4 and 5 of the Act ibid read together would provide that every person born in Pakistan after the commencement of the Act shall be a citizen of Pakistan by birth and subject to the provisions of section 3 a person born after the commencement of the Act shall be a citizen of Pakistan by descent, if his father is a citizen of Pakistan at the time of his birth. Haji Ghulam Sakhi father of the petitioner an Afghan refugee, on false information managed to obtain the National Identity Card and Pakistan Passport which have been cancelled. The petitioner and his father has also purchased immovable property at Peshawar. Their stance is that they have been living in Pakistan since long and intend to remain in Pakistan, therefore, they have become Pakistan national. Para. 2 of the rejoinder to the comments filed by the petitioner is reproduced below:-- "2. The corresponding para. 2 of the writ petition is correct. Copies of the sales deed are Annexure 'A' and 'B' to the writ petition is a proof of the fact that the father of the petitioner is living in Pakistan since long and they have the intention to remain in Pakistan." The long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law. The Afghan refugees have been provided refuge in Pakistan temporarily and they being not the citizen of Pakistan are governed by the Foreigners Act, 1946 (Act XXXI of 1946) and not by the provisions of Citizenship Act which is not applicable to them. According to the definition of 'Foreigner' given in section 2(a) of the Act (XXXI of 1946), 'Foreigner means a person who is not a citizen of Pakistan' hence an Afghan refugee being a foreigner and not a citizen of Pakistan cannot be issued a National Identity Card under section 4 of the National Registration Act, 1973 (Act LVI of 1973) which can only be issued to Pakistani citizens.

COMMENTS

The court laid down the principle that in case of citizenship by descent his father must be a citizen of Pakistan and since the father was an afghan refugee and was under the law of refugees as well as the foreigners act rather than the citizenship laws and thus was not entitled to citizenship. The court also pointed out that simple longevity of stay of a foreigner does not allow him the right of citizenship unless he takes naturalization through proper legal channels.


CONCLUSION

With the above two case laws and the citizenship act it has been made clear what the Pakistan law states. Birth within the soil does indeed allow citizenship to the born but this does not extend to those registered as refugees or are defined as refugees.


With the premier statement many came to point out that the law already provides for such without taking into account that each child born of a registered refugee is also registered as such in UN and in the case of PLD1999 pesh 18 it was held that even if the father is refugee then the son cannot claim citizenship by simply an act of being born since the son too will be seen within the foreigners act this despite the fact that Pakistan citizenship does indeed work on JUS SOLI yet the refugees are not counted since they are governed by the Geneva laws of UNHCR and the foreigners act.


The premier indeed will have to pass legislation amending the citizenship laws stating that it applies to refugees yet this move will indeed lead to a greater web as such legislation will blanket all those that enter Pakistan and through birth ask for citizenship.


The case laws also bring to light that the 1.4 million registered Afghans cannot be granted citizenship through this law and thus new legislation needs to be passed changing the law.


And what of the unregistered ones. The illegal aliens. The foreigners act covers this that such illegal aliens who have not been provided with the permission to reside within Pakistan are deported as such unless they register themselves through the entity called the “alien registration authority” furthermore the federal government indeed has the power under section 3 to make orders but these orders are heavily defined with concerning time of stay or area of stay as such and not with citizenship.


With that the current scenario and laws the legal and registered refugees cannot be naturalized as citizens and the unregistered ones can either be deported or registered and allowed to stay where upon registration they will be seen as refugees and thus cannot be naturalized as citizens.


The premier has to pass a legislation for this to work which would require amendments which can open doors for refugees all over to naturalize themselves…


To make such bold statements and bold steps (whether wrong or right it is a bold step) one must understand the current laws that are in place and governing the refugees before such steps can be taken. The ripples of such legislation and steps will be felt all over Pakistan and so before we enter the stage of what can be done and what must be done, we must understand what is being done right now.


This article is meant to help many of us understand the way naturalization works in our country so that the discussion can begin with this basic understanding.
 

Kaptaan

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@Saiyan0321 Please go to 3:30 and listen to it. Truth and law often is function of those with power and influence to paint the narrative they want. While the poor Afghan refugees are vilified [I have no doubt there are bad eggs amongst them] the reality is MQM is a gangster mafia party that has terrorized and wrecked Karachi. It was MQM that has ruled the city for over 30 years and during Musharaf's time even had footprint in the federal government. Even now a much castrated MQM has shadow on Islamabad trhrought the coalition it provides to PTI government in Islamabad. Has Pakistan been cast as a Indian Muslim refugee dump. Yes sir. It has.

And by delving into the legalities in what actually is a political issue your missing the woods for the tree.

 

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