Arrest, Detention and Deportation (ADD)
Despite signing of the MOU on Employment Cooperation signed between Thailand and its neighbouring countries namely, Lao PDR, Cambodia and Burma in 2002 and 2003, and the recent creation of legal migration channels in Lao PDR and Cambodia, the majority of migrants in the Greater Mekong Sub-region (GMS) continue to migrate through unofficial channels. Undocumented migrants are liable to arrest, detention and deportation (ADD) and even those who register with the government of their host country, their immigration status remains a pseudo-legal mechanisms to monitor and restrict their movement and migrants remain vulnerable to the risk of ADD.
Deeply concerned about the negative physical and psychological impact on migrants as a result of fear for the ADD, extortion and rights violation occurring in the process of ADD, the MMN started in March 2004 to plan for a collaborative research on ADD.
In September 2004, the MMN in collaboration with the MAP, Action Network for Migrants (ANM), Asian Migrant Centre (AMC) and IOM co-organised the Mekong Symposium on Migration: Protecting Migrants’ Rights When They Leave the Host Country as an attempt to gather existing information concerning ADD and to have an initial dialogues between policy makers and representatives from civil society on the matter.
Following a sub-regional research design agreed by the MMN, the country research teams carried out a research on ADD in 2005- 2006. The MMN collectively analysed the findings of the research and came up with regional recommendations.
These recommendations are aimed at 1) ceasing the criminalisation of migrants; 2) promoting decent working and living conditions in order to prevent situations where migrants become subject to ADD; and 3) make the procedures of ADD more humane, transparent and subject to independent legal oversight.
Having these recommendations as the main reference point, the MMN decided to carry out an ADD campaign which would include the following actions.
1. To systematically monitor the cases related to ADD in GMS;
2. To continue policy dialogues with the GMS policy makers to make the MMN minimum list of demand concerning ADD met; and
3. To have more consultations with actions groups to make its advocacy concerning ADD more effective.
MIGRATION IN THE GREATER MEKONG SUBREGION
RESOURCE BOOK: In-depth study: Arrest, Detention and Deportation
The third resource book by the Mekong Migration Network raises questions not only regarding the legitimacy of the procedures utilised but also the rationale justifying the arrest, detention and deportation of migrants in the Greater Mekong Sub-region. The resource book is the result of multi-country research involving migrant associations, NGOs, mass organisations and academic institutes based in Burma, Cambodia, Lao PDR, Thailand, Vietnam and Yunnan,China.
In order to combat the human rights violations experienced by migrants during routine arrests, detention and deportations, the report urges governments in the region to:
- cease the criminalisation of migrants;
- eliminate restrictions which lead to abusive and exploitative working conditions and which make migrants vulnerable to arrest, detention and deportation; and
- reform arrest, detention and deportation procedures to ensure they are humane, transparent and subject to legal oversight.
Criminalisation of Migrants
The study shows how the lack of legal channels for migration in the GMS forces migrants to cross borders illegally and consequently endanger their lives. Migrants’ lives are placed at serious risk when they must resort to clandestine means to migrate, such as hiding in containers, setting sail on rickety boats, or scrambling through landmine infested border areas. Furthermore, criminalising these migrants only opens the door for brokers to defraud and exploit migrants and for corrupt government officials to extort bribes.
Mekong Migration Network recommends that GMS governments provide proper channels for all people to legally migrate for the purposes of work and suggests that if the concern of the governments is that migrants are arriving into the country without documents, a simple remedy would surely be to directly issue documents to migrants at the border. If migrants have access to official, legitimate recruitment services at the border, they can travel legally and openly to their work-sites, thus avoiding the need to risk their lives by using clandestine transportation.
The report demonstrates that after arrival, inconsistent law enforcement further breeds a climate of distrust, divisions and resentment. While migrants are criminalised for not registering for work permits or for not carrying their work permits with them, employers who fail to facilitate workers’ registration for work permits or who confiscate employees’ work permits do not face any legal sanction. Thus, while migrants understand that they must respect the laws of the host country, it is difficult for them to abide by these laws when their employers do not.
Eliminate restrictions which lead to abusive and exploitative working conditions and which make migrants vulnerable to arrest, detention and deportation
The work permit system creates and enforces an unnatural level of dependency on the employer which forces migrants to rely on their employers not only for their work but also for their accommodation, food and immigration status. The greater the restrictions imposed on migrants, the greater the number of violations that migrants are considered to be committing and thus their arrest, detention and deportation accordingly increases. These restrictions further increase the power imbalance between employers and workers and can be taken advantage of by employers to abuse and exploit migrant workers.
Abusive and exploitative working conditions regularly push migrants into an irregular status, making them more vulnerable to arrest, detention and deportation. For instance, if migrants want to leave an abusive or exploitative workplace and change employers, they lose their legal status and become vulnerable to arrest. When migrants try to negotiate for fair conditions, they are terminated by their employer, which then revokes their work permit. In other instances, registered migrants were arrested despite having documents because their employers had confiscated their work permits.
Other restrictions that the report highlights are the restriction on travel, on periods of registration, on who can register and on assembly. Without the ability to exercise these basic rights, migrants will inevitably be more vulnerable to arrest, detention and deportation.
The report raises the possibility of creating a one stop service to document undocumented migrants in the workplace as an alternative to employing harsh enforcement measures.
Reform the procedures of arrest, detention and deportation to make them more humane, transparent and subject to legal oversight
Migrants report that they may be subject to arrest anywhere and at anytime and that there is little they can do to protect themselves from being arrested. The randomness, intrusiveness and pervasiveness of arrests means that a migrants’ life is never completely free of fear or insecurity. The arbitrary application of the law threatens any confidence migrants have in the legal system, not to mention provokes discontent and frustration. In many cases, arrest procedures fail to respect the basic dignity or safety of migrants:
“We were arrested in the worker’s dormitories….There were 12 police officers, including two policewomen. They shouted that anyone who tried to run would be shot. One person jumped into a stream and ran, but was caught further up the stream. The police dragged him out by the neck and brought him back….” (Burmese worker in Mae Sot)
A Cambodian migrant fisherman interviewed in Rayong, Thailand, reports that most arrests of fishermen begin around midnight. Cambodian migrant beggars in Ho Chi Minh City, Vietnam, also report that arrests mostly occur at night. Given the increased risk to safety, the Mekong Migration Network recommends the relevant authorities in the region cease the practice of night-time arrests and dawn raids.
In other cases, the arrest of migrants as illegal entrants was used as an excuse to perform a drug search. Shan women told of an instance when they were arrested by Thai soldiers on their way into Thailand near the unofficial crossing between the Shan state and Thailand at Nong Ook. “There was a small hut. We had to go one by one into the room. Some women…didn’t want to take off their clothes, especially not their underwear, but they were forced to.” The performance of full body searches of migrant women in isolated areas by male officials is a violation of women’s rights to bodily integrity and invites opportunities for further sexual abuse.
The conditions and length of detention vary from place to place without any logical explanation. However, all migrants in all countries complained that they were not informed about the legal procedures governing their detention including the length of time they would be held. Some migrants describe traumatic experiences during detention:
“When I was in Mae Sot police cell, I saw the police and the ‘police dog’ (Burmese slang for police interpreter) buy whiskey 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 to three months unrecorded.”
During deportation, migrants report being herded onto old vehicles, denied sufficient food, water and toilet stops for the journey and generally being treated without any dignity. In Cambodia and Lao, migrants have to pay fines or perform work for the local immigration officers as punishment for illegal exit before they can go home. Migrants from Burma explain that immediately after deportation they simply turn around and return back to Thailand.
The report finds that the lack of standard procedures results in migrants feeling disempowered from complaining about their treatment. Migrants have difficulty knowing if their rights have been violated because they do not know what standards are applicable. The rights of migrants do not appear to be treated as a set of inalienable rights, but rather, vary in line with constantly shifting policies and at the discretion of authorities. As a result, employers and individuals entrusted to uphold the law continue to use loopholes to gain financial advantage at the expense of migrants’ dignity and humanity.