In April we visited Sikander Mehmood at SHARP (Society for Human Rights and Prisoners' Aid) to get an initial sense of the legal treatment of migrants detained at the Pakistan/Iran border or following their deportation back to Pakistan.
Mehmood is immersed in defending migrants’ rights as the senior lawyer in SHARP’s Karachi office. His staff manage the registration of asylum seekers on behalf of the UNHCR. They also take on the legal defence of foreign nationals who are threatened with deportation under Pakistan’s Foreigners Act (1946). These mostly Afghan clients are accused of not having valid documentation (either a Proof of Registration or Afghan Citizens’ Card) that would entitle them to residency in Pakistan. SHARP has several strategies to defend these clients in court, including arguing that the accused have developed family ties in Pakistan or highlighting procedural errors in the prosecution’s submission.
SHARP is, consequently, actively pushing back against policies of 'crimmigration' (Juliet Stumpf 2006) in which undocumented foreigners are subject to unpredictable enforcement of immigration controls, threats of deportation and the possibility of lengthy detention. In contrast, SHARP does not come across cases of Pakistani citizens who are prosecuted under the Emigration Ordinance (1979). This might seem surprising given that this legislation seems to establish a regime of what might be called cremigration, in which citizens who attempt undocumented emigration from Pakistan can be fined or imprisoned by the Pakistani courts.
The Emigration Ordinance (1979) replaced the previous Indian Emigration Act (1922), which had been enacted by the colonial Government of India to control and monitor ‘unskilled’ labour flows to British Dominions. This colonial legislation was designed to control emigration by ‘an illiterate labourers’ on the grounds of protecting them from exploitation and to ensure India’s economic development and international standing (see Radhika Singha 2013). The 1922 law remained applicable until the late 70s, after the military coup led by General Zia-ul-Haq, when there was increasing emigration for employment in the Gulf Cooperation States (GCC).
Since the 1980s, the GCC has been the principal overseas employer of Pakistani labour (mostly in construction). The 1979 law replicates many of the previous law’s paternalistic aims by licensing a limited number of recruitment agencies to authorise emigration for overseas employment, establishing advice and support services for emigrant workers, and criminalizing undocumented emigration and human smuggling. The Federal Investigation Authority (FIA) has the power to investigate and prosecute offences under the Emigration Ordinance, which allows undocumented migrants to be punished with up to five years imprisonment. Potentially, this legislation (and its accompanying Emigration Rules 1979) should have a significant impact on what happens to undocumented Pakistani migrants who come to the attention of the FIA.
However, recent reports from the International Labour Organization (ILO) and rulings issued by the courts suggest that enforcement of the Emigration Ordinance is limited. The government has allowed a proliferation of unlicensed recruitment agencies and middle-men who illegally charge upfront fees to emigrants entering the formal overseas job market while providing them with little information about the employment rights. Moreover, courts appear reluctant to punish Pakistani citizens for simply trying to migrate. Although Pakistani migrants deported for not possessing a formal contract of employment are detained and charged on being returned to Pakistan, it seems that they are rarely imprisoned and only sometimes fined. The FIA often fail to pursue prosecutions and judges frequently acquit undocumented Pakistani migrants if they confess; often noting that the accused are first time offenders and the sole breadwinners in impoverished families. SHARP’s experience and court rulings issued in 2019 suggest that only smugglers risk a fine or imprisonment.