Nowhere to turn: A report on conditions of Burmese asylum seekers in Thailand

Report
from Jesuit Refugee Service
Published on 11 Jul 2005
and the impacts of refugee status determination suspension and the absence of mechanisms to screen asylum seekers

I. Executive Summary

There is an estimated 1.5 to 2 million Burmese living in Thailand. Of those, there are approximately 140,000 Burmese living in the nine established refugee camps. In addition, there are approximately 3,885 Burmese who are classified as "Persons of Concern to UNHCR" (POC status pre-Feb. 2004) and approximately over 6,000 Burmese who were allowed to register with UNHCR in 2004, but who were not allowed to undergo refugee status determination or to obtain official permission to enter the camps. The RTG has prohibited UNHCR from registering any Burmese since January 2004. Although the RTG has promised to establish a Provincial Admissions Board (PAB) for the purpose of determining whether Burmese may enter, register and reside in the border camps, they have not yet done so. At this time, there is no way for a Burmese asylum seeker to gain any type of refugee-related status in Thailand: UNHCR has been prohibited from conferring status, and the RTG has not yet created its recognition admissions system. Refugees have a right to legal status and attendant protection and assistance under international law. This right cannot be set aside because there is no reliable adjudications procedure in Thailand.

Nowhere to Turn is the assessment of the International Rescue Committee and Jesuit Refugee Service of the impact of the suspension of refugee status determination for the Burmese forced migrants living in Thailand. This coupled with the absence of any Thai Government mechanism to screen asylum seekers; bona-fide asylum seekers are caught in an assistance limbo, a political vacuum and a no-man's land of human and legal rights. This report is an objective yet accessible looks at this serious problem. We hope it will spawn serious discussion about how to address the human impact.

We also argue for what should be done. JRS and IRC believe strongly in the right to apply for asylum, and the rights inherent once refugee status is conferred. For refugees this is the first step in a durable solution for the problems they face, be it human rights violations at home, or the insecurity faced living illegally in Thailand. We believe refugee status determination for this population should recommence, thus allowing services to be provided to those who need it.

For the NGO workers who come into daily contact with the lives of thousands of urban Burmese forced migrants and to see the inaction to this problem cause severe distress, as we witness children that are not being educated and not eating, the sick are not being treated and those without a place to sleep go homeless. The lives led by a generation of Burmese people are being pushed to the edges of human society.

To date there is no moral outrage and there are no angry editorials. There are only the individuals themselves, in silent emotion, and those who try to help them, often in silent frustration. This report seeks to channel that frustration productively and to call on the shared commitment of us all, embodied in the 1945 Universal Declaration of Human Rights: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."

II. Background

The situation in Thailand of forcibly displaced persons from Burma is complicated, with individuals living in rural and urban areas, in camps and elsewhere. For refugees unable to enter border camps, due to personal security or inability to register with the Ministry of Interior (MOI), the only alternative is to come to Bangkok or Mae Sot and apply for UNHCR refugee status determination. Under its mandate, the Office of the United Nations High Commissioner for Refugees (UNHCR) has the responsibility for assisting refugees irrespective of whether the State in which they are operating has either signed the Convention or operates procedures to identify and assist refugees. Burmese refugee cases recognized by UNHCR are labeled as "Persons of Concerns (POC)" -- meaning those who should be in border camps but are unable for whatever reason to go to the camps. UNHCR has been offering this status determination, albeit with interruption depending on the political climate, since the late 1990s.

In July 2003, following the protest of Burmese nationals against the detention of Aung San Suu Kyi and the Depayin Massacre, the Thai Government lashed out against the UNHCR for issuing letters of protection to Burmese refugees. These letters apparently undermined the sovereignty of Thailand. The Government announced that all asylum seekers and refugees from Burma should not be in Bangkok or other urban centers. Following that announcement, an in-principle agreement was reached between UNHCR and the RTG to move recognized Burmese refugees to the camps in the border area.

Due to growing pressure from the Thai government, UNHCR announced in January 2004 the suspension of the refugee status determination activities for new Burmese applicants seeking asylum. The justification for suspending RSD for new applications is contained in a release from the UNHCR Regional Office.(1) There were two reasons given. Firstly it is suggested that suspension is 'in compliance with the Royal Thai Government's policy approach'; the second reason is to decrease the backlog within UNHCR. It was thought that suspending RSD coupled with the RTG announcement to move the POCs into border camps would reduce the number of new approaches. The perceived benefit of recognition, on the part of Burmese asylum seekers, would be reduced. It was also thought that the majority of pending cases would disappear for follow up as assistance and benefits for those going through RSD process were reduced. Contrary to initial belief, to date there are well over 6,000 persons registered with UNHCR for the parallel provincial board admission. Asylum seekers continue to arrive into Thailand despite the suspension.

Over one year has passed since that decision was made. There has been no government response to the void left by UNHCR's withdrawal from status determination. Among service providers there is a growing concern of the human rights impact on individuals fleeing Burma into a situation where no protection and assistance are available.

In the course of daily casework, the International Rescue Committee (IRC) and the Jesuit Refugee Service (JRS) collected profiles and living conditions of asylum seekers registered with UNHCR since January 2004. IRC and JRS did this to highlight reasons for our growing concerns. The two organizations decided to compile this data into a report. The main objectives of the report are as follows:

1) To determine the impact of the RSD suspension on the 2004 asylum seekers and refugees;

2) To prepare a profile of this caseload;

3) To identify possible strategies in assisting this group, taking into consideration the major gaps in protection and infringement on their basic

human rights during the extended period of RSD suspension and in the absence of RTG's screening mechanism.

III. Policies and Practices

a. Thai Government policy on refugees and migrants from Burma

Policy on refugees and asylum seekers

Thailand is not a state party to the 1951 Convention on the Status of Refugees. There is no domestic law granting refugee status and protection for persons seeking asylum. According to the Immigration Act refugees are considered illegal migrants subject to arrest and deportation. In lieu of a formal protection mechanism, Thailand uses special cabinet resolutions and specific articles of the Immigration Act to grant temporary residential status to people who fear return to their country of origin. For example, cabinet resolutions based on humanitarian grounds, allow approximately 120,000 refugees from Burma to stay in nine official refugee camps.(2) These are referred to by the RTG as "temporary shelters for displaced persons from Burma" and refugees recognized by UNHCR to stay in Maneeloy Burmese Student Center in Ratchaburi province resulting later in resettlement to third countries. Although certainly not covering all asylum seekers in Thailand, these policies and resolutions have saved many lives from forced repatriation and to some extent provided persons with access to certain rights and resettlement options.

In 1999, the Thai government established a provincial board admission process to regulate camp entry for newly arrived refugees in four provinces bordering Burma: Mae Hong Son, Tak, Ratchaburi and Kanchanaburi. The UNHCR had a minimal role in the outcomes of the Provincial Admissions Board decisions. UNHCR was given observer status and allowed to submit names of new arrivals to the provincial and local authorities. Unfortunately, the PAB was never fully functional, and had unclear decision-making guidelines. The PABs rejected over 4,000 individuals, mostly from Mae La camp, from registering, as they did not fit the "fleeing fighting" definition. Although UNHCR made appeals for these cases, the PAB overturned few decisions. This system collapsed in 2001, leaving thousands of refugees unregistered and non-existent in the eyes of the government in the border camps. They either stayed illegally in the camps or remained as illegal migrants in different parts of Thailand. Some of them turned to UNHCR in Bangkok seeking assistance and protection.

Since late 2003, there have been on-going negotiations between the Thai government and UNHCR regarding the reactivation of the Provincial Admission Boards to screen, accept and relocate refugees recognized by UNHCR (generally known as Person of Concerns or POCs) from urban areas into the border camps. Out of 1,834 POCs recognized prior to July 2003, of which some have already resettled to third countries, about 449 persons remain in Thailand. These individuals will reportedly be transferred to Tham Hin and Ban Ton Yan camp before March 31, 2005. At the time of writing this report, the Thai government had announced that all recognized refugees, numbering 2,407 POCs recognized by UNHCR after July 2003, are also to be moved to border camps by the March deadline. Those refusing transfer to the camps will be denied any chances for resettlement and will be considered as illegal migrants.

As part of the Thai government's attempt to establish a mechanism to screen and control the number of non-camp asylum seekers, deemed a risk to national security, UNHCR was asked to suspend its Refugee Status Determination (RSD). Starting January 1, 2004 UNHCR ended RSD yet continued to register individuals seeking asylum. To date more than 6,000 cases and persons have registered. It is uncertain how Thai government will deal with this group if no mechanism is established in the immediate future.

Policy on migrants from Burma, Laos and Cambodia

It is estimated that there are between 1-2 million migrants from Burma in Thailand. The Thai government considers these persons economic migrants rather than persons fleeing fighting or asylum seekers. To control cross border migration flow, and a strong drive by the expanding economy to acquire cheap labor, the Thai government introduced a policy in 2004 to legalize economic migrants from three neighboring countries, i.e. Burma, Laos and Cambodia. The process includes registering migrants in July 2004 and granting them temporary legal status until June 2005. The registered migrants who pass medical examinations can apply for work permits. Those registered but who will not work, including dependents of migrants, can buy health insurance. This insurance costs 1,900 Baht and is valid until June 2005. It is unclear whether those registered but without a work permit will be allowed to stay after June 2005.

Although the above process is aimed at economic migrants, asylum seekers who have temporary legal status through migration registration are at least in principle protected from forced repatriation. However, the number of asylum seekers registered with MOI last July is unknown. It is worth highlighting barriers that prevented asylum seekers and migrants from such registration. The registration period was too short (only one month); there was a lack of information about registration and what would happen after registration; safety concerns as a result of the RTG sharing information with SPDC which might lead to SPDC retaliation against asylum seekers friends or family members still living in Burma; fear of deportation after June 2005; and MOI authority's refusal to register. As of February 2005, there has been no clear attempt from the Thai government to distinguish among the MOI registered migrants those who have refugees' claims and those who could be sent back to Burma.

b. UNHCR practices

Similar to other countries where there is an absence of government admission process for asylum seekers, UNHCR conducts the Refugee Status Determination in Thailand for asylum seekers claiming to have fear of persecution in their country of origin. UNHCR has been offering this status determination since the late 1990s. Once recognized under the 1951 Convention, refugees benefit from assistance and protection provided by UNHCR, particularly to prevent forced deportation.

Although refugees recognized by UNHCR are considered as illegal migrants under the Immigration Act, subject to arrest and deportation, UNHCR's intervention, such as providing a protection letter and having staff negotiate with immigration officers for release in border towns prior to deportation, has prevented those refugees from persecution should they be deported. This is sometimes referred to as the safe return arrangement. The POCs also benefit from assistance provided by UNHCR through its NGO implementing partner. Assistance included, for instance, a monthly stipend, health and education (although such assistance has sometimes been limited or suspended), and a resettlement scheme.(3) Moreover, the RSD provides a basis for other humanitarian organizations to focus their provision of assistance to asylum seekers supposedly in greater need of assistance and protection than illegal migrants in general.

Towards the end of 2003, there was a policy shift by the Thai government affecting the lives of thousands of Burmese refugees and asylum seekers. Under pressure from the Thai government, UNHCR suspended its RSD of new asylum seekers from Burma on 6 January 2004. The Thai government did not give any assistance agencies notice, nor was UNHCR able to share information with Burmese refugees or assistance agencies prior to the suspension. Non-governmental organizations in Bangkok received written post facto notification from UNHCR on January 8, 2004. The Thai government granted UNHCR approval as of February 1, 2004, to "register" new asylum seekers. While continuing to make determination on applications submitted prior to 2004, UNHCR established a parallel registration system where the RTG at a later date collects applicant information to determine camp admission eligibility. The RTG would re-instate the Provincial Admissions Board while procedures and selection criteria for admission are still being discussed with UNHCR. UNHCR can only refer registered persons for admission consideration but is unable to give asylum seekers any definitive resolution of their status.

By the end of 2004, the number of asylum seekers registered with UNHCR reached 6,000 persons. Fourteen months have passed and the Thai government has not yet come out with a clear plan for this group. UNHCR continues its registration without providing effective protection and assistance to those who seek asylum. To date UNHCR relies on NGOs to assist in the identification of extremely vulnerable cases, such as gender-based violence or victims of torture, but no assistance has been provided to this vulnerable group. All the while Burmese refugees and asylum seekers continue to arrive into Thailand despite the suspension of the refugee status determination.

c. NGO practices

There are few NGOs providing assistance to asylum seekers and refugees outside camps in Thailand. IRC and JRS have been providing assistance to asylum seekers who applied, or would like to apply, to UNHCR for refugee status determination in Bangkok. IRC's current provisions of assistance include health and legal counseling and representation. IRC staff also work in migrant communities to provide health education, legal counseling, training, and referrals. Similarly, JRS provides legal counseling and representation to asylum seekers going through the RSD process as well as providing cash assistance to refugees regardless of their nationality. In 2004, due to funding difficulties, IRC was no longer able to provide cash assistance, which had been available since 1999, to asylum seekers going through the UNHCR RSD process. JRS picked up all groups previously assisted by IRC. The increasing number of asylum seekers registering or waiting to be registered currently overwhelms it; JRS Mae Sot aided 2,700 registered persons with steady new arrivals and applicants seeking assistance.

The Thai government's policy shifts and UNHCR's decision to suspend its RSD have left thousands of vulnerable individuals in a state of relative legal and practical uncertainty. There are of course no provisions in Thai law for the specific human rights protection of refugees; such persons depended in part upon the United Nations for refugee human rights protection in their circumstances. In lieu of any human rights protection, these individuals contacted many refugee assistance agencies and human rights groups in Bangkok and on the Burmese border with requests for assistance pending a coherent and available policy on relocation and screening procedures. This has placed significant strains both on the resources that service providers can expand and on the relationship between UNHCR and service providers. Most importantly, it has resulted in an incomplete system of human rights protection for Burmese refugees.

IV. Methodology

a. Sampling

The IRC and JRS documented 353 individuals and families in Bangkok, Kanchanaburi, Mae Sot, and Ratchaburi during the months of November 2004 through January 2005. The sample size consisted of 218 females and 135 males. These interviews were in the course of our daily casework with individuals concerned. Both organizations will continue to interview and document individuals seeking assistance until there is a change in policy and an effective protection mechanism for such individuals is in place.

b. Method of Data Collection

Due to the unstable security situation and lack of information on the total number of persons registered(4), data collection could not be based on a systematic random sampling method. Instead, multiple methods were used. For the IRC, a "snowballing" sampling method was used where an individual would inform caseworkers of other cases in nearby vicinities. IRC caseworkers conducted on-site visit of individuals' homes. Since all asylum seekers were in fear of arrest, visiting individuals' homes were done mostly during the day and interviews were conducted quietly for fear of raising speculation from neighbors. For JRS, caseworkers in Bangkok and Mae Sot would document all persons seeking assistance at their offices. JRS office in Mae Sot also used a snowballing sampling method and home visits to gather information. There was only one staff conducting the interviews, and relying on referrals from various community-based organizations and the UNHCR, staff worked feverishly during the 3-months to compile all the cases.

A draft questionnaire was developed to collect and document living and health conditions, protection concerns, and past abuse or persecution faced. The questionnaires contained both multiple choice and open-ended questions. Both organizations used similar questionnaires, with JRS using a more concise format for ease of data entry. Caseworkers received orientation training prior to conducting these interviews to minimize data entry error. All caseworkers, consisting of social service and legal officers, could speak Burmese and/or Karen or would use experience interpreters to conduct these interviews. The draft questionnaire was piloted to a small group of individuals, of approximately ten to twenty cases, to evaluate validity of questions. The collected data was analyzed using Excel.

Questions were asked to find out:

1. Do asylum seekers have refugee claims?

2. How are asylum seekers living now that UNHCR suspended RSD?

3. What is the asylum seekers' coping strategy?

4. Length of time asylum seekers has been in Thailand?

5. What are asylum seekers' health conditions?

6. Are asylum seekers able to access health care?

7. In the absence of the RSD and PAB system, how much have security conditions deteriorated?

Because the data was located from four survey locations -- Bangkok, Kanchanaburi, Mae Sot, and Ratchaburi - analyzing and assessing the differences in the character of responses from one area to the other is beyond the purview of this project. We submit, however, that further inquiry will affirm our survey's indications that the four areas are not homogenous. Refugees face different circumstances and situations in all four areas. While solutions to each location cannot be crafted on the basis of this data, we believe that active engagement with these problems will quickly expose these differences and solutions may thereafter be tailored to fit. What can be drawn from this data is that resumption of refugee status determination is necessary.

Notes:

(1) Notice from the UNHCR Regional Office of 6th January

(2) Unofficially, however, there are well over 140,000 refugees living in camps.

(3) Burmese recognized cases received monthly stipend at the rate of 2,500 Baht/month for the principal applicant and 500 Baht for each dependent there after (with the maximum of 5,500 Baht), health assistance and some primary and secondary education from UNHCR. In Mae Sot, the rate was 1,600 Baht for the principal applicant, 800 Baht for a spouse and 300 Baht/dependent. This system stopped in April 2004 for newly recognized cases and any refugees needing cash assistance are assessed on a case-by-case basis.

(4) UNHCR did not provide the total number of persons/cases registered and for confidentiality reasons, was also unable to provide IRC and JRS with individuals' addresses

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