DETAINED ABROAD

Who qualifies as a foreign national under Pakistan’s law?

Under the Foreigners Act 1946, a foreign national is any person who is not a citizen of Pakistan. This applies to all non-citizens present in Pakistani territory, regardless of how long they have been in the country or their immigration status. Two provisions in the Act create particular difficulties for foreign nationals in practice:

• Burden of Proof: If any question arises as to whether a person is or is not a foreigner, the burden of proof lies upon that person to prove their nationality. This can be difficult for anyone without documentation or access to immediate consular assistance.
• Limited recourse where nationality is disputed or uncertain: Where a person holds nationality in more than one country, or where their nationality is genuinely unclear, they may be treated as a national of the country with which they appear most closely connected. That determination is final and cannot be challenged in court, though the Government of Pakistan may revise it on its own motion or on application by the person concerned. This is particularly significant for stateless persons, dual nationals, or those whose documentation does not clearly establish their nationality.^{[8]Foreigners Act 1946 (Pakistan). https://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJiW-sg-jjjjjjjjjjjjj}

What are the basic rights of a foreign national upon arrest or detention?

Under Article 4 of the Constitution of Pakistan 1973, the right to be treated in accordance with the law applies to everyone within Pakistan, not just its citizens. Building on this, the Constitution’s fundamental rights provisions relating to arrest and criminal proceedings make no distinction based on nationality and apply to all “persons”. These include:

• Article 9 — Security of person: no person shall be deprived of life or liberty save in accordance with law.
• Article 10(1) — The right to be informed of the grounds of arrest as soon as may be, and the right to consult and be defended by a legal practitioner of their choice.
• Article 10(2) — The right to be produced before a magistrate within 24 hours of arrest. No person may be detained beyond that period without the authority of a magistrate.
• Article 10-A — The right to a fair trial and due process for the determination of any criminal charge.
• Article 12 — Protection against retrospective punishment.
• Article 13 — Protection against double punishment and self-incrimination.
• Article 14 — Inviolability of dignity: no one may be subjected to torture for the purpose of extracting evidence.^{[9]Constitution of the Islamic Republic of Pakistan 1973. https://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-apaUY2Fvbpw%3D-sg-jjjjjjjjjjjjj}

Where a foreign national is detained on grounds relating to national security, defence, or external affairs, a separate legal framework applies governing the grounds and duration of detention. This framework is set out in the Security of Pakistan Act 1952, as incorporated by Section 3(4) of the Foreigners Act 1946.

What right does a foreign national have to contact their embassy or consulate?

Pakistan ratified the Vienna Convention on Consular Relations (VCCR) in 1969 and is therefore bound by the obligations under Article 36. Foreign nationals who are arrested or detained must be informed without delay of their right to contact their embassy or consulate. If they request it, the relevant consular post must be notified without delay, and consular officers must be allowed to visit, communicate with, and arrange legal representation for their national.

Despite this binding international obligation, Pakistan does not have a standardised national policy on consular access. Whether a foreign national is actually informed of this right, and whether their consulate is notified, varies considerably depending on where they are detained. At the provincial level, prison rules make some provision for consular access, though the strength of these protections differs significantly across provinces:

• Khyber Pakhtunkhwa Prison Rules 2018: Foreign nationals must be notified of their right to consular assistance without delay, allowed reasonable facilities to communicate with their consulates, and given specific information about legal assistance. Prison authorities are required to cooperate with consulates and NGOs where a foreign national has special needs. Foreign nationals are entitled to weekly meetings with consular representatives and lawyers.^{[10]Khyber Pakhtunkhwa Prison Rules 2018. https://prisons.kp.gov.pk}
• Pakistan Prison Rules 1978 (retained in Punjab and Balochistan) contain no provisions explicitly requiring notification of consular rights upon arrest or detention.^{[11]Pakistan Prison Rules 1978 (originally framed under the Prisons Act 1894). https://punjabcode.punjab.gov.pk/uploads/articles/punjab-prisons-rules-1978-pdf2.pdf}
• Sindh Prisons and Corrections Services Act 2019 applies general provisions to all inmates but does not include specific provisions on consular notification at the point of arrest.^{[12]Sindh Prisons and Corrections Services Act 2019 (Sindh Act No XXI of 2019). https://www.pas.gov.pk/uploads/acts/Sindh%20Act%20No.X%20of%202019.pdf; Sindh Prisons and Corrections Services Rules 2019. https://sindhlaws.gov.pk/setup/publications_SindhCode/PUB-NEW-21-000025.pdf}

The International Court of Justice addressed Pakistan’s compliance with Article 36 directly in Jadhav case (2019), finding that Pakistan had breached its obligations in three ways: it failed to inform Mr Jadhav of his right to consular access; it failed to notify Indian consular officers of his arrest without delay; and it denied consular officers the right to visit, communicate with, or arrange legal representation for him. Keeping in view the Article 36 violations, the Court ordered reconsideration of the conviction and sentence of Mr. Jadhav.^{[13]Jadhav (India v Pakistan) (Judgment) [2019] ICJ Rep 418. https://www.icj-cij.org/case/168}

What protections exist for foreign nationals who have no embassy, or who are stateless or a refugee?

Pakistan is not a party to the 1951 Refugee Convention or its 1967 Protocol and does not have a formal domestic asylum or refugee law. In the absence of such a framework, refugees in Pakistan are governed by the Foreigners Act 1946, with no distinct legal status or specific domestic protections beyond those available to foreign nationals generally.

Nonetheless, the KP Prison Rules 2018 (Rule 249-B) specifically address this situation. Foreign nationals who are nationals of states without consular representation in Pakistan, as well as refugees and stateless persons, must be allowed similar facilities to communicate with the consulate of a country that assumes responsibility for their interests, or with any national or international authority tasked with protecting their rights (such as the United Nations High Commissioner for Refugees (UNHCR) or the International Committee of the Red Cross (ICRC)). This mirrors Pakistan’s obligations under the VCCR, which makes equivalent provision for persons without consular representation.^{[14]Khyber Pakhtunkhwa Prison Rules 2018. https://prisons.kp.gov.pk}

Outside KP, however, there is no equivalent provision in provincial prison legislation.