Executive Summary
Despite not being a state party to the 1951 Convention on the Status of Refugees and its 1967 Protocol, Thailand has been offering humanitarian assistance to refugees from the past until now, including the newly arrived refugees from Myanmar. The advent of the National Screening Mechanism to screen “individuals believed to have been affected by persecution if deported outside the Kingdom” enables them to potentially attain the status of “Protected Person” and to afford such protection. Even though Thai laws do provide access to various rights, including birth registration, education, medical treatment, employment, etc., covering a range of fundamental rights, there are gaps in such laws and policies that essentially affect the effectiveness of protection for refugees, particularly the newly arrived refugees. The newly arrived refugees can be roughly categorized into two groups which are refugees affected by armed conflicts or living in the conflict zone and therefore wanting to seek a temporary shelter and individuals (including family members) fleeing individual persecution. There are five issues to ponder regarding this matter: Firstly, immigration law tends to be enforced before other measures. It could be said that the Thai government recognizes the fact or the existence of a “well-founded fear of prosecution” of various types of refugees who exist in Thailand. It, however, refuses to recognize the definition of refugee. Most importantly, the Thai government tends to place the utmost importance on national security and international relations. As a result, its various implementations in this regard fail to ensure the provision of genuine protection. In particular, such humanitarian assistance shall only be offered when there is an influx of a large group of asylum seekers who have apparently fled from armed conflicts. As a matter of fact, the Thai authorities tend to apply the immigration law whenever they encounter any illegal entry of refugees. Such refugees shall be treated exclusively based on their legal status pertaining to the immigration law and determined as having broken the law. It will lead to an arrest, detention, and deportation, which result in refugees being vulnerable to persecution. The importance of the enforcement of the immigration law is often justified by reason of legality as the authorities tend to invoke the possibility of being charged with an offence of negligence of duties should they fail to enforce the law. Secondly, access to various rights, including medical treatment and employment, are among the fundamental rights. Still, such access to rights continues to be impeded in their daily life. Thirdly, the case of refugees detained in the IDC, and how their right to bail has been determined differently in various areas, and how the bail bond is set too high for the refugees. Fourthly, with the influx of newly arrived refugees, it is obvious that these newly arrived refugees are local and affected villagers living in the conflict zones between the military regime and the opposition groups. These people are in dire need of temporary shelters and access to fundamental assistance, including food, medicine, etc. One of the initial measures is an effort to facilitate and ensure local mechanisms, including administrative agencies, local communities, civil society, etc., are able to offer such timely assistance faster than through the existing bureaucratic process. Fifthly, the case of newly arrived refugees with “well-founded fear of prosecution” and their families. These individuals should be prioritized in an effort to determine the status of refugee via the NSM. However, based on the existing NSM regulations, several of them tend to aim at “screening out” the individuals and it tends to raise questions as to the justification of such administrative procedures.
Recommendations from the report
The management and protection of refugees should be based on an overarching understanding and holistic aspects of refugee protection. Fundamentally, there has to be the recognition and certification of the definition of refugee. This has been done via a few existing legislations. Yet, it still needs to be elevated to the level of statutory law that includes the definition of refugee, the screening process (Refugee Status Determination process), the recognition of the right to residency in Thailand, before, during and after the NSM process, and the protection or access to various rights. In addition, the Thai government should adopt a policy to genuinely assimilate and integrate refugees into Thai society through various means while bearing in mind the challenges faced by Thai society, including an aged society and imminently a super-aged society in 2030. This also resonates with the Thai government’s pledges given to the international community. Taking into account the commission of crime or the impact on social peace, as well as national security, this issue can be addressed via the enforcement of the Criminal Procedure Code and immigration law. Recommendations regarding the refugees affected by persecution, armed conflict, and/or living in a conflict zone, etc.: The government should implement a policy to offer them humanitarian assistance by “allowing” local people from various sectors to get involved, including local villagers, community, businesspersons, civil society, non-governmental organizations, etc., to offer help, food, medicine, essential services, and transboundary assistance. A temporality alleviated border control together with the abovementioned assistance plays a crucial role in reducing the number of cross-border migration to Thailand for non-necessary cases. Despite the possible effort of the opposition armed group to establish a safe zone in certain areas international coordination (with the countries of origin) and local coordination are needed to ensure humanitarian safe passages or humanitarian corridors. In the situation where the conflict tends to protract (which is very likely), the transfer of necessities should be made possible in response to the situation, and it should be done so based on the review of lessons learned from the previous attempts to offer temporary shelter. For individual refugees (and their families) and the development of the refugee management and protection system, considering the protective action, it is recommended that the government should recognize the definition of refugee as a person with a well-founded fear of prosecution and make effort to raise public awareness on the inclusive definition of refugees. This can be done through the issuance of written guidelines (circulars) to concerned agencies at all levels. Such circulars should the principle of nonrefoulment the recognition of the right to residency in Thailand before filing the application for the screening process (Refugee Status Determination). This can be done through two means: Firstly by advocating for the government to invoke the Immigration Act B.E. 2522’s Section 17 to determine the immigration status and the right to residency in Thailand of a refugee and the issuance of their personal documents. Secondly, by advocating for the issuance of Ministerial Regulations to permit them to continue living in Thailand “due to their vulnerability to persecution” by offering them a Protection Visa, which can be done by invoking the Immigration Act’s Sections 34 and 35. In addition, an effort should be made to advocate for the enforcement of existing laws and policies to survive, to provide for their families and to become part of an effort to help drive the local economy. In addition, an effort should be made to advocate for the selling of health insurance to a refugee based on an appropriate co-payment program. This can help reduce the burden of the refugees personally and will have a bearing on the funding for medical facilities. Recommendations on system development: An effort should be made to review the NSM regulations (despite not being implemented yet) through the inclusive process involving all sectors. This can give rise to recommendations to develop and enhance the system to manage refugees (the screening or status determination process for refugees and their protection) and the designation of in-charge agencies which may work on the first solution through the revision of the Immigration Act B.E. 2522 or the second solution to draft a specific law.