Blog post by Daron Tan and Manachaya Yankittikul.
Thailand is home to approximately 5,000 urban refugees and asylum seekers (“refugees”). In responding to the COVID-19 pandemic, Thailand has neglected its obligations to ensure that all individuals, including refugees, enjoy “the highest attainable standard of health”, under Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and other related human rights treaties. This is regardless of Thailand’s non-ratification of the Refugee Convention 1951 and its 1967 Protocol.
Despite the obligation to take into special consideration the needs of refugees who may experience marginalisation, Thailand has overlooked the right to health of urban refugees in the context of COVID-19 in three areas. Thailand has failed to: (1) ensure non-discriminatory access to healthcare; (2) secure the underlying determinants of health; and (3) consider alternatives to detention for refugees or ensure adequate living conditions in immigration detention centres (IDCs). We provide rights-based recommendations on how to better include refugees in the Thai government’s COVID-19 response, in order to avert a looming public health catastrophe.
Access to Healthcare
All foreigners, including refugees, can access free COVID-19 testing and treatment regardless of their legal status if a doctor assesses that they are high-risk individuals and confirmed by the Department of Disease Control (see here, here, here, and here). This is in line with Thailand’s Universal Healthcare Coverage System. While this is a positive development, this access is not meaningful for two reasons.
First, refugees may be afraid that they would not be classified as a high-risk individual after being assessed by the doctor and the Department of Disease Control. This may dissuade refugees from getting tested despite displaying symptoms because they fear the high costs of testing if they are assessed to be a low-risk individual. This apprehension is amplified by the fact that many refugees lack information about the disease, the COVID-19 policies of hospitals, and the criteria used for this assessment. This financial challenge is exacerbated by refugees being unable to rely on the migrant insurance scheme because they lack legal status in Thailand. Second, refugees face other obstacles in accessing healthcare more generally. Without legal status, refugees fear being arrested when visiting hospitals. They may also be turned away by public hospitals if they lack proper documentation, which can be attributed to officials and hospital staff lacking understanding about refugees. These challenges are consistent with the observations by the Committee on Economic, Social and Cultural Rights (CESCR) that refugees in Thailand “still face obstacles in accessing basic health care services”.
This violates Thailand’s obligations to respect and fulfil the non-discriminatory accessibility of public healthcare. Arbitrarily arresting (like Malaysia) and refusing to treat refugees violate Thailand’s negative obligations to respect the right to health of refugees because they are prevented from accessing healthcare equally. This also violates Thailand’s obligations under Article 5(e)(iv) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Further, Thailand must fulfil this right by ensuring the economic accessibility and information accessibility of healthcare, which includes ensuring “affordable health care” for refugees.
Underlying Determinants of Health
According to the CESCR’s General Comment 14, securing the right to health is dependent also on ensuring that the underlying determinants of health are met. This includes adequate access to water, sanitation, housing, and healthy occupational and environmental conditions. Thailand has thus far been silent on adopting positive measures to address these determinants, despite the CESCR’s statement to urgently adopt special, targeted measures “to protect and mitigate the impact of the pandemic” on refugee populations.
First, Thailand has not guaranteed that refugees have continued access to work and an adequate standard of living. We have observed many refugees losing their jobs during the COVID-19 pandemic. Many refugees who work on an hourly basis in informal jobs are also unable to continue earning an income during this period. Unfortunately, they are unable to ameliorate this financial precarity because they are excluded from accessing the Thai government’s financial support package, like migrant workers.
Second, this loss of livelihood also affects the ability of refugees to secure their right to housing. With a loss of wages, many risk being homeless if evicted by their landlords, in the absence of a moratorium on evictions imposed by the Thai government. This makes it challenging for refugees to stay at home or observe social distancing: as noted by the Special Rapporteur on the right to adequate housing, this can be a “potential death sentence”. We are not aware of state-run shelters being extended to house homeless refugees.
Third, Thailand has failed to ensure refugees have access to adequate clean water and sanitation. Even for refugees who are not at risk of evictions, many live in poor conditions with overcrowded rooms. This increases the risk of the rapid spread of COVID-19. The current government has ignored the existence of refugees and has yet to take positive actions to provide refugees with access to water, soap, and sanitiser.
Over 200 refugees, including 15 refugee children, remain detained in 22 IDCs across Thailand. Refugees are detained for violations of Thailand’s Immigration Act B.E. 2522 because they lack legal status in Thailand. IDCs are susceptible to an outbreak of COVID-19. For instance, 42 migrant detainees in Sadao’s IDC have already tested positive for COVID-19. The Thai government’s ban on visitors to IDCs has not eliminated the detainees’ “heightened risk of infection”, because there is still a constant flow of detainees and IDC staff in and out of these IDCs.
This risk is heightened by the notoriously abysmal living conditions in IDCs. Bangkok’s IDC in Suan Phlu is overcrowded with very limited health care provided (see here for a recent report). This resonates with the CESCR’s observations on the “substandard living conditions and excessive overcrowding” in IDC, where refugees “suffer from malnutrition and lack of health care, as a result of lengthy and, in some cases, indefinite immigration detention”.
Thailand’s continued detention of refugees ignores guidance that States should consider non-custodial alternatives to detention so that refugees in detention are “released without delay”. This is similar to the CESCR’s recommendations to Thailand to “remedy prison overcrowding, in particular by instituting alternatives to custodial sentences”. This overlaps with Thailand’s obligations under the International Covenant on Civil and Political Rights (ICCPR) to seek “less invasive means of achieving the same ends [of detention]”.
Additionally, Thailand has not implemented the CESCR’s recommendations to take affirmative action to ensure “adequate living conditions in detention centres” and provide “adequate access to health care”. The conditions in IDCs make it impossible for Thailand to guarantee that detainees have access to the underlying determinants of health, including adequate water and sanitation.
The corollary of our analysis is that human rights law can and should guide Thailand’s COVID-19 response plan. This ensures that the health and safety of refugees are not passed over.
In the short run, we recommend that the Thai government:
- Halts all arrests of refugees for immigration-related offences;
- Ensures non-discriminatory access to COVID-19 testing and treatment;
- Facilitates access to healthcare, including making healthcare affordable for refugees and providing information in different languages about COVID-19;
- Implements measures to safeguard refugees’ underlying determinants to health, which can include moratoriums on evictions and targeted programmes to protect jobs;
- Provides adequate water, soap, and sanitiser to refugee communities;
- Implements alternatives to detention for refugees in IDCs; and
- Ensures an adequate standard of living in IDCs, including healthcare, water, and sanitation.
We acknowledge that the challenges in securing the right to health for refugees stem from the systemic and longstanding exclusion of refugees from Thai society. Thus, in the long run, we recommend that the government affords legal status to refugees in Thailand. There has already been good progress on this front. Thailand announced in December 2019 a national screening mechanism (NSM) to screen individuals who cannot return to their countries-of-origin because they fear danger from persecution. The NSM (English translation here) includes a right to healthcare for “Protected Persons”, but the substance of this right has not been elaborated on.
Thailand should adopt a rights-based approach when responding to the COVID-19 pandemic in order to ensure the health of refugees, given the devastating impact of COVID-19 on disadvantaged and marginalised communities. Thus, echoing the CESCR’s statement, allocating resources to marginalised communities must be a priority, not an afterthought. A potential widespread outbreak in refugee communities would further overwhelm the Thai public healthcare system that already lacks the expertise and capacity to test and track COVID-19 cases. Singapore’s lack of foresight of the impact of COVID-19 on its migrant worker community (reported here) serves as a sobering warning of the ramifications of neglecting the marginalised living on the fringes of society. Thailand can distinguish itself from its ASEAN neighbours by setting an example on how to prevent and manage looming catastrophes before they materialise.
Daron Tan is the Refugee Status Determination Team Lead at Asylum Access Thailand. He was Columbia Law School’s Global Public Service Fellow in 2018 – 2019. He has previously worked and published on a range of human rights issues, including the right to health, LGBTQ+ rights, and the human rights accountability of non-state actors. He holds a BA Jurisprudence from the University of Oxford and an LL.M from Columbia Law School.
Manachaya Yankittikul is the Protection and Paralegal Programme Officer at Asylum Access Thailand. She holds an LL.B in international law from Chulalongkorn University and LL.M in public international law from Leiden University. She has previously worked in the field of international criminal law and international humanitarian law.
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