As a part of the MMN’s ongoing advocacy on arrest, detention and deportation, MMN made a submission on 28 January 2012, to the Special Rapporteur on the Human Rights of Migrants concerning the use of Immigration Detention in Thailand. Please find below the submission. Download the PDF version here.

MEKONG MIGRATION NETWORK

Submissions to the Special Rapporteur on the Human Rights of Migrants concerning the use of Immigration Detention in Thailand

Introduction

The Mekong Migration Network (MMN) is a sub-regional network of 39 non-governmental organisations working on migration issues in the Greater Mekong Sub-region. Ms. Jacqueline Pollock, Executive Director of MAP Foundation, is the current chair of the network’s Steering Committee. From 2005-08, MMN conducted collaborative research on the use of Arrest, Detention and Deportation (ADD) in the six Mekong countries. Our findings were published in the book, Migration in the GMS: Resource Book, In-depth Study: Arrest, Detention and Deportation. Since this publication, we have continued to monitor incidents of ADD and advocate for government adherence to our key recommendations, namely: to prevent the criminalization of migrants and to ensure the humaneness and transparency of ADD procedures, where such measures are unavoidable.

In July 2010, MMN made urgent representations to the office of the Special Rapporteur on the Human Rights of Migrants to draw attention to four separate incidents in which 23 vulnerable migrants lost their lives in immigration detention or during enforcement action carried out by the Thai authorities. The present submission serves to supplement these representations, drawing on the research published in our resource book and on more recent interviews with Burmese migrants detained in Mae Sot, close to Thailand’s border with Burma. Our latest field interviews were conducted as part of MMN’s ongoing research into ADD and were carried out in the shadow of the recent flooding that affected large parts of Thailand and which coincided with an estimated 30,000 Burmese migrants being taken to the Immigration Detention Centre (IDC) outside Mae Sot.

Legal Background

Under Thai law, migrants may be detained under the broad discretionary powers conferred by sections 19 and 20 of the Immigration Act, B.E. 2522. These provisions provide statutory authority for a “competent official” to detain an “alien” at any place for a period of not more than 48 hours, extendable to seven days where necessary, and at intervals of 12 days thereafter upon application to a court. Regrettably, there is no ceiling on the number of times a court may renew a person’s detention. As a consequence, immigration detention can theoretically be maintained indefinitely.

These powers have recently been supplemented by Order No 125/2553 of the Prime Minister’s Office, regarding the Suppression, Prosecution and Arrest of Migrants Working Underground. This executive order, promulgated on 19th January 2010, mandates special inter-departmental co-operation on immigration enforcement between the Ministry of Labour, Ministry of Interior, Office of the Royal Thai Police Force, the Army and Navy. As our earlier submission noted, the Thai government’s reliance on the police and armed forces to apprehend and detain migrants is concerning, both in terms of operational transparency and accountability where migrants suffer ill-treatment or worse in detention.
MMN’s research has highlighted various other issues of concern that we wish to draw to the attention of the Special Rapporteur:

Lengthy Detention

Despite the strict statutory limits referred to above, migrants interviewed by MMN continue to report lengthy periods spent in immigration detention. Detainees state that they are rarely informed of the temporal limits applicable to their detention, the reasons why they are being held and how they may go about securing release. These issues are exacerbated by problems accessing legal representation and the general inadequate provision of interpreting services. Lengthy detentions have also been reported where migrants are forced to wait for transportation, where they are unable to secure bail, or are convicted of an immigration offence and cannot pay the fine levied. For example, following a raid on a shoe factory in Bangkok, a Burmese worker told MMN that:

The court asked me if I could afford to pay bail for myself to be released. I was detained for 28 days. I was then released when my wife paid bail but I cannot go back to Burma yet, because I have to wait for the court decision.

While in Fang, northern Thailand, a group of female migrants reported being held in prison for 42 days before taken before a court, where they were fined THB 3,000 (USD 78) and eventually released from police custody seven days later.

Vulnerable Detainees

MMN continues to encounter persons who by international standards should not be held in immigration detention. These include families, unaccompanied minors, people in mental or physical ill-health, pregnant women, trafficked persons, as well as refugees, and asylum seekers. There is presently no systematic screening mechanism in place to identify victims of trafficking, nor are there any guidelines governing the detention of vulnerable individuals, such as those in need of international protection. The UNHCR notes that “refugees and asylum-seekers living outside the [registered] camps are regarded as illegal migrants under immigration law and are subject to arrest, detention and deportation”. While Thailand is not party to the 1951 Refugee Convention, the government has not sought to establish any mechanisms to determine whether detainees and other migrants should be granted protection under customary international law and other relevant human rights treaties that bind the Thai government, notably the ICCPR and the UN Convention Against Torture. MMN has encountered several cases where recognized refugees who have left their camps and other persons in need of international protection have been detained and removed from Thailand.

Conditions of Detention

Many detainees interviewed by MMN reported that the conditions in which they were held were overcrowded with no proper sanitation. This is commonly a problem where migrants are kept in police cells unsuitable for long-term detention and on vehicles used to deport detainees or transport them between places of detention. MMN has observed that overcrowding in IDCs is frequently caused because those on remand or who are unable to pay fines continue to be held alongside new detainees. MMN Interviewees have also complained about the poor or inadequate provision of food, clean drinking water and the inflated prices charged for basic items such as instant noodles and toilet tissue. Other issues of concern relate to limited access to medical care, the lack of gender segregation among detainees and a failure to employ sufficient numbers of female officers. The following comments reflect the variable conditions found in detention facilities across Thailand:

We were provided with three meals a day, water, clothing, and toilet facilities. We had to ask the officials for sanitary pads, there was no protective gear for mosquitoes.

(Women held at a police holding cell in Nakorn Pathom)

 

In the cell, there were fans and we felt comfortable. We could have a bath. There was also drinking water. All the toilets were clean and we drink water from the tap in the toilet.

(Bangkok IDC)

 

Role call was taken every two to three hours to ensure that no-one had escaped.

(Migrant detained at the Bangkhen Detention Centre)

 

I was detained in Chum Porn province of Thailand for 15 days, and in Ranong for 14 days. We had to cut the grass and trees. In Ranong, the detention area was dirty and foul. Everyone got eyesores. There wasn’t enough space for sleeping and we had to eat foul vegetable three times a day.

(27-year old male from Prey Veng Province)

 

In the cell, there is one bath and four toilets in the corner but two toilets are full of shit and could not be used. …There was no mat and we slept on the dirty cement floor without any mosquito nets. There were no fans.’

(Male, Burmese factory worker, detained at the Mae Sot IDC)

Abuse of Detainees

Some migrants interviewed by MMN reported that they experienced verbal and physical abuse while in detention. Female migrants held in isolated locations have been found to be particularly vulnerable to sexual harassment while in detention. The following is an account of one Burmese detainee:

When I was in a Mae Sot police cell, I saw the police and “police dog” [the Burmese slang for the police interpreter which translates as “police dog”] buy whisky with the money obtained from the detainees. When they were drunk they verbally abused the girls in the cell. Sometimes they took the girls out and gave them body searches, saying they were looking for amphetamines. If men made any complaints they were kicked and taken to other cells, where some stayed for two – three months unrecorded.

Other female migrants held at Mae Sot IDC reported that the officers in charge were often drunk and verbally abused all the women. One incident reported by detainees involved five female detainees being removed from their cells at 8 pm and then brought back the following morning at 5am. When questioned by their friends, these five women said that they had had a terrible experience and did not want to talk about it.

Legal Representation & Interpreting Services

While migrants have the right to call a lawyer, their ability to access legal representation in detention is rarely upheld in practice. Problems also exist with regard to the provision of interpreting services. MMN can report that where a lawyer and interpreter are present, the period a person spends in detention is significantly reduced. Unrepresented detainees, particularly those who are not literate in Thai face serious difficulties making the representations necessary to secure their release. Such individuals are also at risk of being coerced to sign documents they do not understand. This problem exists both at the administrative level and in court proceedings, where it is not uncommon for cases to go ahead with neither a lawyer nor an interpreter present. In cases where a court interpreter is provided, they are nearly always Burmese speakers, even though the detainee may only speak Shan, Kachin or Karen. The lack of adequate interpreting services has created a situation where many detainees are forced to rely on other detainees to interpret on their behalf.

Alternatives to Detention

It is MMN’s position that all migrants have a right to liberty and should not be subject to arbitrary immigration detention. Present initiatives to implement detention alternatives in Thailand, such as through the provision of shelters for victims of trafficking and refugee camps have so far proved ineffectual as they frequently revert to quasi-detention regimes. The 10 registered refugee camps in Thailand are closed camps that do not allow refugees to work outside the camp to earn a living or integrate into Thai society. While the Primary Admittance and Protection and Occupational Development Centres for victims of trafficking administered by the Thai government operate closed regimes in which those who “escape” are liable to be pursued and returned under powers contained within section 38 of the Prostitution Prevention and Suppression Act, BE 2539.

MMN Secretariat
info@mekongmigration.org
Hong Kong Office
c/o Asian Migrant Centre, Room 6, 16/F, Man Yuen Building
1-8 Man Yuen Street, Jordan, Kowloon, Hong Kong
phone: +852-23120031, fax:852-2992-0111
Chiang Mai Office
47/17 Moo8, Suthep Road
Muang Chiang Mai 50200 (P.O. Box 153 Chiang Mai University 50200), Thailand
Phone/fax: +66-(0) 53-283259