Thailand: Ensure Refugee Rights and Protections Through Refugee Regulation
Thailand: Ensure Refugee Rights and Protections Through Refugee Regulation
End detention, forcible returns, and establish durable solutions
Bangkok, June 18, 2018
On the occasion of the World Refugee Day on June 20, Asia Pacific Refugee Rights Network (APPRN), The Coalition for the Rights of Refugees and Stateless Person (CRSP), and Fortify Rights urge the Government of Thailand to uphold the rights of refugees in line with international standards. In support of this call, we have submitted to the government draft regulation to recognize and protect refugees in Thailand.
On January 10, 2017, the Thai government adopted Cabinet Resolution 10/01, B.E. 2560, which created a “Committee for the Management of Undocumented Migrants and Refugees” to develop policies concerning the screening and management of undocumented migrants and refugees. This was a positive step towards providing domestic legal status and basic rights for refugee and asylum seekers as well as ensuring the right to asylum as guaranteed by Article 14 of the Universal Declaration of Human Rights. However, there has been little to no progress or consultation with civil society, including refugees, on implementing this resolution since the time of its enactment.
The proposed legal framework that we are submitting to the Government of Thailand seeks to provide a constructive contribution towards implementing Cabinet Resolution 10/01 in order to address long-standing human rights concerns with regard to Thailand’s treatment of displaced and migrant communities. More than 13 civil society organizations working with refugee and migrant communities in Thailand, including Fortify Rights, APRRN, CRSP, developed this draft regulation in consultation with and support from legal experts in refugee and Thai law. The draft regulation provides for:
- Access to asylum procedures for all individuals wishing to seek asylum in Thailand, regardless of the manner, place, or date of entry;
- Procedural guarantees for applicants seeking asylum, such as access to information about the process, free and competent legal counsel, and qualified and impartial interpreters.
- An internationally-recognized definition of refugee;
- A single, specialized body to examine and decide applications for asylum, ensuring decision-makers have appropriate skills, knowledge, and training to assess applications, including competency in refugee law, working with interpreters, conducting cross-cultural interviews, and dealing with trauma survivors;
- Decisions to be based on an individualized and thorough assessment of the particular circumstances of an applicant’s asylum claim, including a personal interview that provides applicants with an opportunity to present evidence on his/her asylum claim;
- Written decisions to be provided to applicants that articulate the basis for the decision in sufficient detail in order to facilitate a meaningful appeal process if necessary;
- Confidentiality at all stages of the asylum procedure and in all aspects of an asylum claim, including the submission of an application for asylum, the contents of an application, the identity of the applicant, allegations of persecution, and other information that forms the basis of the asylum claim;
- The right to an independent appeal process to review questions of both fact and law, and the right to remain in Thailand until there a final decision is made in the case in question; and
- Access to legal documentation, work permits, healthcare, educational opportunities, and other forms of assistance for all asylum seekers and recognized refugees in Thailand.
Fortify Rights, APRRN, CRSP and other individuals and civil society organizations undertook the initiative to develop the draft regulation recognizing Thailand’s recent positive commitments, including through Cabinet Resolution 10/01, B.E. 2560, to protect refugees in Thailand. For example, in a speech at the Leaders’ Summit on the Global Refugee Crisis on September 20, 2016 in New York, Prime Minister Prayut committed to end the detention of refugee children in Thailand and to establish an effective refugee-screening mechanism. The Prime Minister also committed to ensure that refugee returns to Myanmar would be voluntary and to increase refugees’ access to education, healthcare, and birth registration in Thailand.
However, APPRN, CRSP, and Fortify Rights note with concern, the continuing lack of effective protection, both in law and practice, for refugee communities in Thailand. In particular, we are concerned by the continued forced return of refugees to countries where they may face persecution, the indefinite and arbitrary detention of refugees, and the lack of access to livelihoods, labor protections, and education for refugees.
Refoulement or Forced Return
Thailand has long failed to respect the legally binding principle of non-refoulement, which is explicitly prescribed by Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and is considered part of customary international law. Under this principle, states are prohibited from returning an individual to a country where they may face torture or other serious human rights violations.
Thai authorities have also conducted unofficial deportations by transporting individuals to the border and forcing them into a neighboring country without appropriate regard to the risks of further human rights violations they may face. Thailand has also implemented a “help-on” or “push back” policy with regard to possible refugees arriving by sea. Under this policy, Thai authorities have intercepted and towed ill-equipped boats of people out to sea. These policies and practices contravene the principle of non-refoulement and greatly endanger the lives of refugees.Arbitrary and Indefinite Detention
Thai authorities continue to arbitrarily and, in some cases, indefinitely detain refugees, asylum-seekers, and other migrants in immigration detention centers (IDCs) and government-run shelters. Under Thailand’s Immigration Act of 1979, those who enter or stay in Thailand without permission, including refugees, are subject to arrest and detention. Throughout the year, Thai authorities conducted raids to identify, arrest, detain, and deport migrants in violation of Thailand’s immigration law. Refugees were among those arrested and detained during the year.
Although Thailand’s immigration detention facilities are only designed for stays of up to 15 days, the authorities have detained some refugees for several years. Some IDCs, including the Suan Phlu IDC in Bangkok, are overcrowded with poor sanitation and limited access to basic needs. Deaths in immigration detention have been reported during the year, including a 16-year old Rohingya girl who died in Sadao IDC in November 2017 after spending more than three years in IDCs and government-run shelters.
To date, more than 20 accompanied and un-accompanied children remain detained in IDCs in Thailand. Although the Thai government in coordination with civil society organizations piloted a program in July 2017 to facilitate the release of children from detention, only 11 children benefited from the program. The program also did not extend to the children’s parents, who remain detained and separated from their children.
During the 2nd periodic report of Thailand’s compliance with its legal obligations under the International Covenant on Civil and Political Rights, the U.N. Human Rights Committee called on Thailand to improve its detention facilities and promote alternatives to detention. The Thai government failed to submit a progress report to the U.N. Human Rights Committee ahead of the deadline on March 15, 2018. The U.N. Human Rights Committee requested a response from the government by July 12, 2018.
Lack of Access to Livelihoods and Labor Protections
Thailand’s labor laws prohibit refugees without a valid visa and work permit from working legally in the country. As a result, refugees often have no option but to engage in work that is unauthorized and frequently characterized as dangerous and degrading. Refugees generally do not enjoy the protections stipulated by Thailand’s Labor Protection Act and other domestic labor laws. Rather, refugees are often subjected to abusive, exploitative, and dangerous work environments. This is contrary to the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Thailand is a state party. Under Article 7 of the ICESCR, states are obliged to protect the rights of everyone to enjoy just and favorable conditions of work.
Access to Education
Thailand’s domestic laws guarantees that all children have a right to quality and free “basic education provided by the State for the duration of at least 12 years,” regardless of legal status. However, many refugee children are largely unable to access Thai schools due to restrictions on movement, language barriers, and discriminatory treatment by school administrators. Access to secondary and tertiary education is even more limited.
Many of these problems could be solved through the implementation of a legal framework that recognizes and protects refugees. To further protect the human rights of refugees, survivors of human trafficking, and migrants, Fortify Rights, APRRN, CRSP recommend that the Thai Government:
- Ensure asylum procedures are enshrined in law and effectively implemented.
- End the indefinite detention of refugees and survivors of human trafficking held in immigration detention centers and government-run shelters.
- Ensure that refugees are detained only in exceptional circumstances, following an individualized assessment, and after all less invasive alternatives to detention have been exhausted.
- Prevent the refoulement of individuals whose life or freedom would be threatened upon return to their home countries.
- Accede to the 1951 Refugee Convention and its 1967 Protocol, the Convention on the Protection of All Migrant Workers and Members of Their Families, and other key human rights treaties.
- Undertake meaningful, formal consultations with civil society and with refugees living in Thailand to develop a legal framework to recognize and protect refugees in Thailand.
According to UNHCR, Thailand hosts approximately 97,000 refugees, a majority of whom are protracted refugees from Myanmar living in temporary shelters along the Thailand-Myanmar border. Not included in this figure are 7,000 urban refugees and asylum seekers from over 45 countries including Pakistan, Vietnam, Somalia, Iraq, Palestine, Syria, China, and other countries, living in Bangkok and the surrounding provinces. There are also approximately 100 Rohingya refugees and survivors of human trafficking detained in immigration detention facilities or in shelters run by the Ministry of Social Development and Human Security.
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