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Two Sides of the Same Coin : Contradictory Legal and  Administrative  Practices toward Children in Immigration Detention  Centers   in the Asia Pacific

Saittawut   Yutthaworakool , Shraddha Pokharel,  Sophea  Try Asia Pacific Master of Arts in Human Rights and Democratisation Institute of Human Rights and Peace Studies, Mahidol University

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Immigration detention centers (IDCs) in  Indonesia, Malaysia, and Thailand Non-ratification to the 1951 Refugee Convention and the 1967 Protocol State Parties to the Convention on the Rights of the Child  ASEAN Human Rights Declaration in 2012 Declaration on the Rights of Children in the Context of Migration in 2019

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About 1,602 migrant children keep in IDCs in 2016 (Save the Children, 2017) 2011 Immigration Law Apply to non-national entering Indonesia detention for up to 10 years without judicial review President Regulation No 125 on the Treatment of Refugees and Asylum Seekers Offer the temporary shelters

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Destination countries provide support to transit countries Government’ response to the detention of  a child: “means of protection” Exposed to the risk of abuse, violence, or stress disorder

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As of June 2020, 177,940 Refugee and Asylum Seekers 46,370 Children below the age of 18 (UNHCR) 647 children in IDCs (2016) IDCs extensively used as “integral part to manage migration” (Nah, 2015) Justification  is  national security Not  a domestic  issue; hold international organizations accountable

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Immigration Regulations 1963/59 permits arrest and detention of all  undocumented -Without  trial up to 30 days  (Criminal  Procedure  Code) - J udicial  caning, incarceration up to 5 years, fine up to 10,000  RM Category of undocumented immigrants does not clarify the status of children Absence of legal protection, refugee children  treated  similar to illegal  immigrants Children in harrowing condition in IDCs for extended period

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Non ratification of 1951 UN Refugee Convention and 1967 Protocol Legally non-binding regional mechanisms -ASEAN Declaration on Rights of Children in Context of Migration  -Bangkok Principles and Bali Process Actively sought exception -Reservation of CRC article 27 and 38 Refused to stand by their own standard UDHR fair trial not adhered Detention of children below 18 despite law

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Why are children detained? State’s Unwillingness

Detain  children below 18  citing  lack of  alternatives to IDCs Delayed judicial review relating to children Miscommunication, lack of coordination between different immigration units obstructs children’s  cases  Monitoring org barred from IDCs including UN (UNHCR,2019 ) Access to UNHCR discretionary (Nah,2015) UNHCR cards  though  RSD neglected by authorities

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Why are children detained? Social and Political Attitude

Limited media reporting More negative portrayal of refugee Growing intolerance of refugees among public Surge  in hate speech and xenophobic  attitudes Changed government policies  Anti-refugee  state  rhetoric Movement Control  Order;  many refugee children detained

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Current Situations of Children in Thailand’s IDCs

Thailand represents both a transit and destination country for human mobility. Save the Children (2017): There is an  uncomfirmed  number of refugee children and child asylum seekers in IDCs. At least, 49 children were recorded in December 2015. In October 2017, Thai police raided residential places in Bangkok, and arrested 19 Pakistani and Somali children, despite having a “person of concern” document, issued by UNHCR. Refugees and asylum seekers in Thailand normally arrive as tourists with legal documents, but they stay until visas expire, and are considered as illegal migrants. Later, they are taken to the legal procedures, and detained if they cannot pay fines. Currently, there are 14 IDCs across the country.

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What happens to Children in Thailand’s IDCs?

New admitted children are documented in the criminal records. Suan   Phlu  IDC is the major detention center in Bangkok, which is small, and designed for a short stay. Facilities and living conditions are substandard. No education, recreation, and religious spaces Children under age of 12 are separated from parents, and allowed to meet each other once a week only.  Nutrition and healthcare are the primary issues. The IDCs are overcrowded. Detainees must afford health cost by themselves.  Relatives or UN staff can visit with security measures such as name identification.

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Why Thailand fails to uphold international obligations?

1. Legal Factor Thailand does not recognize refugees’ status. Thus, refugees’ rights and liberty are not guaranteed. Instead, Thailand uses the terms, ‘displaced persons’ or ‘persons who are fleeing from wars.’ Thailand’s relevant laws on migration and children’s rights are out-of-date and conservative, such as the Immigration Act (1979) and Child Protection Act (2003). The latest Child and Youth Development Promotion Act (2007) lacks youth participation, while roles of refugee children and child asylum seekers are not mentioned.

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2. Administrative Process Building new facilities are almost impossible in IDCs outside Bangkok, due to budget constraints. Deportation can be seen as a sign of advantage exchanges between Thailand and the other country. Thai State sees that putting children alone in different detention cells would serve the best interest of the children.

3. Socio-Political Context Thailand has never accepted and would never accept refugees as part of the society, due to national security threats, Buddhist nationalism, and conservativeness. National Human Rights Commission (NHRC) is weak to voice concerns.

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Thailand’s Ways ahead to the Best Interest of the Child

Nowadays, Thailand collaborates with international organizations and adopts international agreements. In January 2019, Thai Government signed a  MoU  on Determination of Measures and Approaches Alternative to Detention of Children in Immigration Detention Centers with seven INGOs Thailand should treat all migrant children equally with non-discrimination. The country should recognize Refugee Convention, terminate reservation on CRC’s Article 22, and reform domestic legal system. Recreation facilities, education, healthcare, and access to religion and belief should be ensured.

Two Sides of the Same Coin: Contradictory Legal and Administrative Practices toward Children in Immigration Detention Centers in the Asia Pacific

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