Thailand’s new asylum law leaves refugees with more questions, few protections

Mae La Refugee CampPhoto: Mae La Refugee Camp

Thailand’s new law on asylum seekers doesn’t constitute a functional refugee policy—it’s political performance in a country where migrants have few protections.

By Gene Ryack

The Thai-Myanmar border has long been home to refugees and people displaced by Myanmar’s cycle of internal conflicts. Indigenous groups—ethnic Karen, Shan and others—have been pushed off their land by decades of war between Myanmar’s military and ethnic armed groups. Many of them cross over into Thailand and, according to UN statistics, Thailand is now home to a total of around 100,000 refugees. The actual number is likely far higher, with those crossing over the Myanmar border making up a significant portion of the 2.2 million Myanmar migrants living in the country.

Myanmar’s civil wars have intensified in recent months. The Myanmar military has escalated its offensives while the world’s attention is focused on the coronavirus pandemic. Many of the displaced may continue to cross into Thailand to seek protection. Thailand’s policies towards refugees will also come into the spotlight as migrants who remain in the country—now that land borders are shut—are among the most vulnerable to COVID-19 and its impacts.

But until recently, Thailand had never given any protected status to people fleeing conflict or persecution, instead treating all undocumented migrants equally under a single immigration law. While Thailand allowed these groups shelter from the Myanmar military, the Thai government denied most of them legal status or documentation, preventing them from accessing education, government services and economic opportunities. Thailand’s policies fall far below international standards for the protection of asylum seekers.

This lack of a legal framework to assess asylum claims has exposed refugees to human trafficking, arbitrary detention and other abuses. Migrants that get caught up in Thailand’s immigrant detention centers are treated like criminals and face severe overcrowding and limited access to healthcare.

In December, the Thai government approved a new National Screening Mechanism for “protected persons.” The new law lays out a framework, slated to come into effect in June, that will eventually grant protections to some asylum seekers. But the law doesn’t use the term “refugee” and its definition of “protected persons” is deliberately vague.

The new screening mechanism doesn’t constitute a functional refugee policy—it’s an aspiration. Though it may be a good faith effort to address the precarious status of refugees, the new law, like the process behind it, is political performance by a government desperate for good press. It doesn’t offer concrete steps to address the precarious and varied situations of migrants in Thailand, and this leaves major questions as to how it will be used.

Civil society groups in Thailand have called on the government to adopt “an internationally-recognized definition of a ‘refugee’” and implement clear policies to protect asylum seekers. 

Mae La camp in Tak, Thailand is home to more than 50,000 refugees from Myanmar.
Photo: Mae La Refugee Camp

Thailand has sheltered refugees for decades

According to government records, Thailand has been receiving refugees fleeing war and conflict across Southeast Asia since 1984, though the country never ratified the 1951 Convention relating to the Status of Refugees. Prior to 1984, the country’s track record wasn’t good. After the fall of the Khmer Rouge, Thailand forced over 40,000 Cambodian refugees across the border at gunpoint, handing them over to Vietnamese soldiers. Thailand also forced thousands of ethnic Hmong to return to Laos after the US Central Intelligence Agency (CIA) ended its paramilitary campaign in the country. 

Today, the majority of Thailand’s refugees are ethnic Karen—around 84%. The UNHCR also shows most coming from Karen State—68%—but this seems skewed, given the incidence of conflict across Myanmar.

Most of these refugees are spread out across the Thai-Myanmar border. Statistics from the United Nations High Commissioner for Refugees (UNHCR) show the country currently hosts over 90,000 in the border area but only 5,000 in Bangkok and the surrounding area. The largest camp on the Myanmar border, Mae La, houses over 30,000 people. Migrants living in the camps face strict restrictions on their movements and access to services.

Thailand moves to address the gaps in its migrant policies

Refugees in Thailand have faced innumerable hurdles and most are unable to own land, access education or find legal employment. Until 2005, most non-citizens in Thailand were barred from basic healthcare and education. In 2016, the Thai government amended its citizenship laws, opening up new opportunities for many refugees.

The drafting process behind the new National Screen Mechanism began that same year and primarily took place under the military junta. The government made numerous commitments to introduce policies in line with international standards, including a pledge to stop holding refugee children in detention centres.

But the new law lacks specifics 

The International Detention Coalition, an advocacy group, has voiced concerns that the new policy won’t be able to offer refugees much protection. The policy doesn’t lay out specific eligibility criteria for granting migrants protected status. Screening is left to the discretion of a new committee led by the Thai police, which will both implement and manage the process. The law reserves four spots on the committee for academics or representatives from civil society, but again, the law isn’t specific about how these spots will be filled or who can hold these positions. 

After the Thai cabinet approved the law in December, the UNHCR responded by welcoming the move but said the law’s effectiveness will depend on how it’s implemented, writing: “It is hoped that the screening mechanism will regularise the stay of persons in need of international protection in Thailand and lend predictability to the asylum space.”

Waritsara Rungthong and Caroline Stover, of the Refugee Rights Litigation Project in Bangkok, raise similar questions in their analysis: “There is no current indication that the regulation conforms to the robust definition of a “refugee” that has been developed and implemented for decades by states around the globe, and the concomitant rights.”

They also point to a crucial precedent in Thai refugee policy that may be cause for concern. To regulate the populations in refugee camps along the Myanmar border, Thailand uses a system of Provincial Admission Boards, empowered to set requirements for entry and reject refugees as they see fit. The boards’ policies fall short of international standards and they have a track record of rejecting migrants who need protection, even barring the entire Shan ethnic group from Thailand’s camps. As a result, Shan migrants aren’t counted in many statistics about refugees in the country.

The government also has a record of forcibly returning asylum seekers to countries where they face risks of unlawful detention, torture and other rights abuses. The most recent high-profile case came early last year when Thailand detained football player and Bahraini refugee Hakeem al-Araibi for 77 days. Thai authorities came close to extraditing him before eventually allowing him to return to Australia. Thailand has also detained groups of Uyghur refugees on several occasions, cooperating with orders from the Chinese government.

Though the new screening mechanism is a step in the right direction, the Thai government’s intentions remain unclear. Just before the law was passed, Deputy Prime Minister Prawit Wongsuwon called on the UNHCR to speed up its processing of refugees and asylum seekers in Thailand so they could be sent on to a third country.

The committee for Thailand’s new asylum process may lay out guidelines that offer refugees clear criteria and much-needed protections. But until this happens, the law leaves advocates and migrants with mostly questions.