The Stateless Rohingya in Thailand

It is estimated that there are at least 10 million stateless people in the world today.[1]  Because the stateless have no formally recognized nationality or citizenship they are often unable to avail themselves of the legal and diplomatic protections of any country.  Though international human rights in principle are afforded to all individuals regardless of their citizenship status,[2] in practice the absence of citizenship often prevents the exercise of rights, such as the rights to non-discrimination, freedom of movement, and freedom from arbitrary arrest and detention.  Additionally, stateless individuals have difficulty obtaining access to employment, housing, education, healthcare, and travel.[3]  Statelessness can also make individuals vulnerable to labor exploitation, sexual exploitation, trafficking, and other abuses.[4]

One of the largest stateless groups in the world is the Rohingya of Myanmar (also known as Burma).[5]  The United Nations High Commissioner for Refugees (UNHCR) has recently reported growing abuse and exploitation faced by the Rohingya as they continue to seek safety outside of Myanmar following violence that erupted in the country’s Rakhine state two years ago.[6]  Such abuses include testimonies of smuggling and trafficking from Thailand to Malaysia in which individuals have described being kept in smugglers’ camps in the jungles or hills near the Thai-Malaysia border until their families are able to pay for their release.[7]  These individuals have also recounted being subjected to beatings and malnutrition while in the smugglers’ camps.[8]

The Rohingya are an ethnic, religious, and linguistic minority concentrated in the northern region of Myanmar’s Rakhine state.[9]  Their historical presence in Myanmar is a contentious issue.[10]  Some claim they are an indigenous Burmese ethnic group descended from the first Muslim inhabitants in the Rakhine region, who arrived around the ninth century.[11]  Others claim they migrated to Rakhine during British colonial rule which started in 1826.[12]  The Rohingya were deprived of their nationality in 1982 by Myanmar’s Citizenship Law which denied them citizenship and effectively rendered them stateless.[13]  In addition to being stateless, Myanmar’s Rohingya encounter persecution in the form of discrimination, and exploitation through biased policies and arbitrary controls.[14]  These include (but are not limited to) restrictions on their movement, forced labor, extortion, discriminatory marriage regulations, and land confiscation.[15]  For example, Rohingya in Myanmar are required to obtain travel permits to visit neighboring villages, and they are commonly barred from traveling beyond the three townships of Buthidaung, Maungdaw, and Rathedaung.[16]  Furthermore, Rohingya who leave the country are denied the right to return, their names are taken off family lists kept by the government of Myanmar, and may face long-term imprisonment if caught upon re-entry.[17]  The controls placed on Rohingya in Myanmar impede their already limited access to employment, education, health, and trade.

Due to human rights abuses, discriminatory policies, and conflict in the Rakhine state, many have fled – and continue to flee – the country.[18]  It is estimated that over one million Rohingya live outside Myanmar, most without legal status.[19]  The UNHCR has recognized the Rohingya refugee situation as a regional issue affecting countries including Bangladesh, Thailand, Malaysia, Indonesia, Australia, India, and the Middle East.[20]

Rohingya fleeing Myanmar experience common issues and problems in the various countries to which they relocate, including lack of legal status, discrimination, and trafficking and forced labor.[21]  These problems are intimately related to their statelessness.  Though Thailand is not unique in its treatment of this vulnerable group, it provides a case study of the way statelessness can negatively impact Rohingya living outside Myanmar.

Thailand is both a destination and transit country that intercepts Rohingya on their way to third countries.[22]  While the majority of Rohingya use it as a transit route to reach Malaysia and Australia, there is a small but significant settled population residing in the country, many of which have lived in Thailand for over twenty years.[23]

Both the settled Rohingya in Thailand and those traveling through the country face problems related to their statelessness which influence their security.  As stateless persons, Rohingya do not hold proof of legal identity.  Since documentationof nationality is a prerequisite to travel and to acquire immigration status, the Rohingya are essentially unable to rely on legal forms of migration.  Thailand is not a signatory to the 1951 Convention relating to the Status of Refugees[24] nor to the 1954 Convention relating to the Status of Stateless Persons.[25]  Because Thailand has no formal refugee law framework, its Immigration Act of 1979 regulates all foreigners entering the state’s territory, including refugees.  Under the Immigration Act, a valid passport (or document used in lieu of a passport) is required for lawful admission,[26] and any foreigner who enters or stays in Thailand without lawful admission is subject to deportation.[27]

Nonetheless, Thailand has for decades accommodated some persons displaced by conflict in Myanmar in camps along the Myanmar-Thailand border, specifically the Karen, Karenni, Burman, and Mon ethnic groups.[28]  Reports indicate that the Thai Provincial Admissions Board—the agency responsible for refugee status determination for all asylum seekers from Myanmar—does not recognize the Rohingya as needing protection in the camps.[29]  As a result, Rohingya tend to live in cities outside the designated camps as urban refugees[30] and are not formally recognized as refugees by the Thai government.  Though UNHCR does operate in Thailand and provides some degree of protection to urban refugees from nationalities other than Myanmar, Rohingya are unable to access this protection.  Starting in January 2004, the Thai government revoked UNHCR’s ability to screen individuals from Myanmar for refugee status.[31] This effectively placed the Rohingya in a protection gap excluding them from protection from both the UNHCR and the Thai Provincial Admissions Board.  This renders them unauthorized migrants who are subject to arrest, detention, and expulsion under the Immigration Act.  It also places Rohingya at a disadvantage in comparison to other groups from Myanmar who are able to avail themselves of protection in camps.

Absence of legal immigration status in Thailand not only affects their security, but impedes Rohingya from gaining lawful employment, a particular concern for the settled population.  Under Thai law, work by foreigners may only be done in accordance with regulations issued by the Ministry of Labour and may not be performed in the absence of a work permit.[32]  To receive a work permit, an individual must either be a resident or be authorized to enter Thailand, conditions which the Rohingya do not fulfill.[33]

Since 2004, some unauthorized migrants have had the opportunity to regularize their status through a national verification process which allows them to obtain work permits.[34]  This process is an initiative of the Thai government to address the legal status problems of large numbers of irregular migrants from Cambodia, Lao People’s Democratic Republic, and Myanmar.[35]  Rohingya, however, are also barred from this process because they are not recognized as nationals by any government.  Consequently, while other unauthorized migrants have access to work, Thailand effectively discriminates against the Rohingya because of their statelessness.

The inability to obtain work permits confine Rohingya to jobs in the informal labor sector leaving them susceptible to extortion by both employers and police.  Without the legal right to work, Rohingya cannot seek protection from workplace abuse.[36]  Furthermore, police authority to detain, deport, and fine unauthorized migrants[37] puts the Rohingya in vulnerable positions where they can be forced to pay bribes to avoid these actions.  According to interviews with the settled Rohingya in Thailand, police harassment, detention, and extortion among the working population are common experiences.[38]  Many of the interviewees reported paying monthly bribes to police to avoid arrest and detention.[39]

Trafficking and forced labor are another prevalent problem for stateless Rohingya.  Lack of documentation compels Rohingya to rely on smugglers to travel outside of Myanmar, leaving Rohingya susceptible to trafficking and forced labor.[40]  According to Human Rights Watch, human traffickers “operate with impunity” in Thailand and target Rohingya seeking to travel to Malaysia.[41]

The problem of trafficking and the Rohingya’s stateless status was illustrated by raids conducted by the Thai government in January 2013 on makeshift shelters believed to be smuggling camps in Songkhla province.  The raids resulted in the apprehensions of nearly 800 Rohingya and the arrest of several trafficking suspects.[42]  Testimonies of the apprehended Rohingya described beatings and forced labor for those unable to pay the exorbitant fees to be smuggled into Malaysia.[43]  The apprehended Rohingya were treated as unauthorized immigrants under Thailand’s Immigration Act and detained.[44]  Given the two unsuitable prospects available under the Immigration Act—return to Myanmar, where they would likely face persecution, and indefinite detention[45]—it is believed that some Thai officials unofficially allowed Rohingya to leave detention centers and travel to Malaysia via smuggling networks.[46]  This returns the Rohingya to high-risk conditions.  The situation of trafficking is exacerbated by the Rohingya’s inability to obtain legal and diplomatic protection from any country.  They cannot safely return to Myanmar nor can they legally stay and work in Thailand leaving them with nearly no viable options.

In essence, the absence of citizenship often denies individuals the ability to exercise rights and increases their vulnerability.  As illustrated by the example of Thailand, the Rohingya face obstacles in obtaining legal status due, in large part, to their lack of state citizenship.  This, in turn, significantly influences their security and ability to access work.  Though the Rohingya issue is a complex situation affecting many countries and, ultimately, requires a range of solutions from different states, there are several steps that could be taken to improve the situation for Rohingya in Thailand.  Allowing the Rohingya to regularize their status, which would grant access to work permits and the same basic health insurance and work place protection given to Thai nationals, would be a positive initial step.  Additionally, providing Rohingya children born in Thailand the legal right to stay in Thailand (through the granting of citizenship, legal residency or other measures) would help reduce the negative effects of statelessness on children born in its territory.  Currently, Rohingya children born in Thailand remain stateless and vulnerable to deportation because they are not conferred Thai nationality or legal status in the country. Finally, granting UNHCR the ability to conduct refugee status determination for Rohingya would help in establishing the population’s need for international protection.

Nikki Ostrand
Center for Migration Studies 

 

[1] UNHCR 2014, Protecting the Rights of Stateless Persons: The 1954 Convention relating to the Status of Stateless Persons (2010). Statelessness refers to the condition of an individual who is not considered as a national or citizen by any state. See 1954 Convention relating to the Status of Stateless Persons, article 1(1).

[2] Human Rights Committee, General Comment No. 15:The Position of Aliens Under the Covenant(April 1986), para 1; Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (May 2004), para. 10.

[3] Green, Nicole, and Todd Pierce, “Combatting Statelessness: A Government Perspective”, Forced Migration Review 32 (2009), p. 34-35.

[4] Ibid.

[5] UNHCR Policy Development and Evaluation Service, States of Denial: A Review of UNHCR’s Response to the Protracted Situation of Stateless Rohingya Refugees in Bangladesh (2011), p. 3.

[6] UNHCR “As Thousands Continue to Flee Myanmar, UNHCR Concerned about Growing Reports of Abuse”, at http://www.unhcr.org/5396ee3b9.html.

[7] Ibid.

[8] Ibid.

[9] Chris Lewa, “North Arakan: an open prison for the Rohingya in Burma”, Forced Migration Review 32 (2009), p. 11.

[10] For more discussion see pp. 22-24 in National University of Ireland Galway, Crimes Against Humanity in Western Burma: The Situation of the Rohingyas, Irish Centre for Human Rights (2010), at http://burmaactionireland.org/images/uploads/ICHR_Rohingya_Report_2010.pdf

[11] Ibid.

[12] Ibid.

[13] Burma Citizenship Law 1982, at http://www.refworld.org/docid/3ae6b4f71b.html

[14] Discrimination against Rohingya in Myanmar is well documented.  See e.g. Fortify Rights, Policies of Persecution: Ending Abusive State Policies Against Rohingya Muslims in Myanmar (2014), at http://www.fortifyrights.org/downloads/Policies_of_Persecution_Feb_25_Fortify_Rights.pdf; Equal Rights Trust, Unravelling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons (2010), pp. 59 – 63, at http://www.equalrightstrust.org/view-subdocument/index.htm?id=748; National University of Ireland Galway, Crimes Against Humanity in Western Burma: The Situation of the Rohingyas, Irish Centre for Human Rights (2010), at http://burmaactionireland.org/images/uploads/ICHR_Rohingya_Report_2010.pdf

[15] UNHCR Policy Development and Evaluation Service, States of Denial: A Review of UNHCR’s Response to the Protracted Situation of Stateless Rohingya Refugees in Bangladesh (2011), p. 7.

[16]Equal Rights Trust, Burning Homes, and Sinking Lives: A Situation Report on Violence against Stateless Rohingya in Myanmar and their Refoulement from Bangladesh (2012), p. 7, at http://www.equalrightstrust.org/ertdocumentbank/The%20Equal%20Rights%20Trust%20-%20Burning%20Homes%20Sinking%20Lives.pdf.

[17] Ibid.

[18] In addition to the steady flow of Rohingya refugees over several decades, there have been three mass exoduses (in 1978, 1992, and 2012-2013) from Myanmar.  These migrations were the result of large scale violence against the Rohingya community.  See Equal Rights Trust and Institute of Human Rights and Peace Studies, The Human Rights of Stateless Rohingya in Thailand (2014).

[19] Ibid.

[20] UNHCR Policy Development and Evaluation Service, States of Denial: A Review of UNHCR’s Response to the Protracted Situation of Stateless Rohingya Refugees in Bangladesh (2011), p. 7.

[21] Equal Rights Trust and Institute of Human Rights and Peace Studies, The Human Rights of Stateless Rohingya in Thailand (2014).

[22] Ibid.

[23] There is an estimated 3000 settled Rohingya living in Thailand. Ibid.

[24] 1951 Convention relating to the Status of Refugees

[25] 1954 Convention relating to the Status of Stateless Persons

[26] Immigration Act, B.E. 2522 (1979) [Thailand], chapter 2 section 12, at http://www.refworld.org/docid/46b2f9f42.html

[27] Immigration Act, B.E. 2522 (1979) [Thailand], chapter 6 section 54,at http://www.refworld.org/docid/46b2f9f42.html

[28] The Border Consortium, “Refugee and IDP Camp Populations: January 2014”, at http://theborderconsortium.org/camps/2014-01-jan-map-tbc-unhcr.pdf

[29] Human Rights Watch, Ad hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers (2012), pp. 87-89. See also Human Rights Watch, “Thailand: End Inhumane Detention of Rohingya: Provide Asylum Seekers Access to UN Refugee Agency”(2013), at http://www.hrw.org/news/2013/06/03/thailand-end-inhumane-detention-rohingya.

[30] Human Rights Watch, Ad hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers (2012).

[31] Ibid.

[32] Alien Working Act, B.E. 2551 (2008) [Thailand], section 9.

[33] Alien Working Act, B.E. 2551 (2008) [Thailand], section 10.

[34] Starting in 2004 bilateral Memorandums of Understanding on Cooperation in Employment of Workers (MOUs) were signed between Thailand and the governments of Cambodia, Lao PDR, and Myanmar.  These MOUs regularize migrant worker status through a registration processes.  After completion of the process, registered migrant workers are allowed the same basic health insurance and protection given to working Thai nationals.

[35] Hall, Andy “Migration and Thailand: Policy, Perspectives and Challenges”, in Thailand Migration Report 2011, eds. Jerrold Huguet & Aphichat Chamratrithirong, p, 18 & 19.

[36] Registered migrant workers are allowed to access basic health insurance and protection under three laws: the 1998 Labour Protection Act, the 1990 Social Security Act, and the 1994 Workmen’s Compensation Act.

[37] Alien Working Act, B.E. 2551 (2008) [Thailand], section 51.

[38] Equal Rights Trust and Institute of Human Rights and Peace Studies, The Human Rights of Stateless Rohingya in Thailand (2014), p. 15. This report was informed by semi-structured interviews with over 20 stateless Rohingya living in Bangkok.

[39] Ibid, p. 15.

[40] Ibid.

[41] Human Rights Watch, “Thailand: Traffickers Access Government-run ‘Shelter’” (June 27, 2013), at http://www.hrw.org/news/2013/06/27/thailand-traffickers-access-government-run-shelter

[42]Aljazeera, “Myanmar Rohingya refugees rescued in Thailand”, Aljazeera (January 11, 2013), at http://www.aljazeera.com/news/asia-pacific/2013/01/201311184320327355.html.

[43] See e.g. Morison, Alan and Chutima Sidasathian “Second Rohingya Trafficking Camp Raided, Rights Group Calls for UN Intervention”, Phuket Wan (January 13, 2013), at http://phuketwan.com/tourism/second-rohingya-camp-raided-rights-group-calls-intervention-17407/ . For more on the vulnerability of Rohingya to trafficking networks on the Thai-Malaysia border see Equal Rights Trust, Trapped in a Cycle of Flight: Stateless Rohingya in Malaysia (2010), pp. 23-31, at http://www.equalrightstrust.org/ertdocumentbank/ERTMalaysiaReportFinal.pdf.

[44] Equal Rights Trust and Institute of Human Rights and Peace Studies, The Human Rights of Stateless Rohingya in Thailand (2014), p. 11.

[45] Immigration Act, B.E. 2522 (1979) [Thailand], chapter 6 section 54. Section 54 inadvertently allows for indefinite detention when deportation is not a feasible option. “…In case there is an order for deportation of the alien, while waiting for the alien to be deported, the competent officer may…detain the alien at any place, as long as it is necessary.”

[46] It is believed that some officials released the Rohingya based on humanitarian reasons.  Reports also indicate Thai officials actually sold Rohingya to smugglers for profit.  See e.g., Human Rights Watch, “Thailand: Protect Rohingya ‘Boat Children’; End Collusion with Traffickers; Shelter Families” (January 6, 2014), at http://www.hrw.org/news/2014/01/06/thailand-protect-rohingya-boat-children; Marshall, Andrew & Jason Szep, “Special Report: Thailand Secretly Supplies Myanmar Refugees to Trafficking Rings”, Reuters (December 4, 2013), at http://www.reuters.com/article/2013/12/05/us-thailand-rohingya-special-report-idUSBRE9B400320131205