PESHAWAR: The Peshawar High Court has directed the federal government to decide asylum cases of Afghan artists and transgender persons under the principle of non-refoulement and declared that those foreigners shouldn’t be deported till that decision was made.

A bench consisting of Justice Syed Arshad Ali and Justice Wiqar Ahmad ruled that the petitioners should also be allowed to apply to the United Nations High Commissioner for Refugees for recommending their cases to the federal government for the grant of asylum.

“That the federal government may itself or an officer notified by the federal government shall consider cases of all these petitioners and shall decide whether or not the essential ingredients for grant of asylum on the basis of preventing them from refoulement, have been forthcoming in their cases and if said ingredients are found in case of one or more of petitioners, then the federal government or its notified officer shall make a decision regarding grant of asylum for such period as may be determined by the federal government,” it declared in the verdict.

The court added that the federal government or its notified officer would decide cases of all petitioners from grant or refusal of asylum within two months and until the final decision, the petitioners won’t be “ousted nor otherwise compelled to leave Pakistan and go back to their native country.”

PHC stops deportation of Afghan artists, transgenders until decision made on their cases

It declared that if the federal government was unable to decide cases of all those petitioners within 60 days, the interior secretary should allow them to stay in the country for a period of time required to the federal government or the notified officer for final decision in the matter.

The court stopped the federal and provincial law-enforcement agencies from acting against petitioners over their stay in Pakistan for 60 days or the time extended by the federal government.

In June last year, the high court issued a stay order, stopping authorities from deporting these Afghan petitioners from the country until further orders.

The petitioners feared persecution on return to Taliban-ruled Afghanistan.

The main petition was filed on behalf of 157 Afghan musicians and singers by Hashmatullah Omed, Rafi Hanif and Hameed Shahdai, while another petition came from Ahmad Anwari alias Hooria and 16 other transgender persons.

Advocate Mumtaz Ahmad represented them in the two cases.

Later, another petition was filed by Afghan artist Hafizullah Azizi, whose lawyer was Gohar Rehman Khattak.

The court had appointed senior lawyer and former advocate general Aamir Javed as amicus curiae to provide legal expertise on legal points in light of international and national laws.

Mumtaz Ahmad argued that his clients had challenged the decision of the federal government to forcibly repatriate all unregistered Afghan nationals living in the country and they were among those Afghans.

He claimed that the takeover of Afghanistan by the Taliban endangered the lives of the local artists and transgender people as the government had announced that it wouldn’t allow Afghan artists to perform in the country.

The lawyer said that like thousands of other Afghans, his clients fled their country along with their families and took shelter in Pakistan.

He added that the petitioners and their families were registered by the UN refugee agency, which gave them a token number, and their cases were under process.

Mr Ahmad requested the court to stop the federal government from deporting petitioners until thetheir applications are decided by the UNHCR.

He contended that the federal government was bound by international conventions not to deport petitioners under the principle of non-refoulement.

Published in Dawn, January 11th, 2025