Blog post by Caroline Stover, the Asia Programme Manager at ARTICLE 19 and a legal consultant for the Refugee Rights Litigation Project.
The emerging human rights crisis in Myanmar has become the first real test for Thailand’s commitment to refugees after the promulgation of its Regulation on the Screening of Aliens Entering into the Kingdom and Unable to Return to their Country of Origin (B.E. 2562). The Regulation provides the rhetorical commitment—and in some cases concrete legal commitment—to refugee protection. The question is whether Thai authorities will permit Myanmar refugees to access it.
On 1 February 2021, Myanmar’s armed forces (Tatmadaw) illegally seized power and detained National League for Democracy politicians along with prominent military critics, filmmakers, and others. Since then, the Tatmadaw has pursued a brutal campaign to stop a civil disobedience movement, quash protests, and curtail the flow of information and funds in and out of the country. The military has locked up thousands and killed hundreds, leading human rights groups to call for the Myanmar military’s actions to be investigated as crimes against humanity.
It is likely that many of those fleeing Myanmar are eligible for refugee status on several grounds under the 1951 Refugee Convention and its Protocol. To give just one example, those whose political opinion — whether real or imputed — is in opposition to the military junta are like to be recognized as refugees. The junta’s imposition of sweeping legal changes that further erode the right to freedom of expression and expand the notion of treason to any attempts to overthrow the government through “unconstitutional” means show the high risk of persecution in the country for those opposing the military. The military’s decision to declare the Committee Representing Pyidaungsu Hluttaw an unlawful association shows the military is unafraid to use its new self-declared “legal” powers alongside longstanding, oppressive laws. Many others need protection due to the ongoing violence in the country.
In early March, the Thai government announced that it was preparing for a potential influx of refugees from Myanmar. Reports indicate that hundreds have already fled major cities in Myanmar and are sheltering in areas controlled by the Karen National Union. The Thai government has reported that it has set up standard operating procedures and camps ready to house up to 2,000 refugees arriving from Myanmar. Yet, the protection Myanmar refugees can receive is far from certain, despite the Regulation’s promulgation.
Thailand’s “National Screening Mechanism” and protection against deportation
For more than a year, Thai civil society, refugees, and the international community have awaited the implementation of Thailand’s National Screening Mechanism (NSM) — a procedure to be set up under the Regulation with the stated aim of “managing” those unable to return to their home country because of persecution. The NSM has been widely anticipated as a possible means of providing greater protection to refugees in Thailand. However, the Regulation establishing the NSM itself carefully avoids any commitment to respect established international refugee law, namely the 1951 Refugee Convention. At least on paper, the Regulation envisages an NSM that would screen for those in need of protection and allow those identified to stay in Thailand.
While the Regulation establishing Thailand’s NSM was passed in late 2019, the Regulation did not come into force until 22 June 2020. Throughout 2020, refugee flows into Thailand slowed significantly due to the COVID-19 pandemic. As a result, the Regulation has yet to be tested in the face of a large refugee influx.
Lawyers have raised several concerns and open questions about the NSM to be set up under the Regulation. The Regulation fails to explain who the NSM will protect and how. It is likely we will only know those details once the Committee established by the Regulation begins to work. For example, the Regulation defines a “protected person” as a foreigner who “enters into or resides within the Country, and is unable to, or unwilling to, return to the country of such person’s domicile due to a reasonable cause that such person will suffer danger due to the persecution as determined by the Committee, and that such person was granted status of Protected Person under this Regulation.” Hence, the Committee holds great responsibilities in setting the scope of protection: it both defines “persecution” under the Regulation and decides who qualifies for protection. There are further questions about the rights that attach to the status afforded for “protected persons” and how exceptions relating to “national security” will be interpreted.
The Committee also sets the form for requests for protected person status (Section 16) to Competent Officials, who then consider the applicant’s “eligibility” to apply for protected person status. The Committee considers appeals for decisions of ineligibility to apply for protected person status (Section 17). Further, the Committee decides applications for protected person status that have passed the “eligibility” phase (Section 20). Without clarity from the Committee on these substantive and procedural points, applications for protected person status do not appear possible at the moment.
Nevertheless, one section of the Regulation could already be used to protect those fleeing Myanmar. Section 15 of the Regulation provides a legal basis for the deferral of deportations where a foreigner alleges to have a reasonable ground for protection. The section does not require that an application already be filed and hence can be invoked without the NSM procedures set up. Still, with a caveat to Section 15 for cases involving “national security” and a history of politicized approaches to refugees, there are real concerns about whether Thailand will follow through on its commitment to protecting refugees.
Given the uncertainty around the content of the NSM, the current situation is a test for the Regulation and its efficacy in protecting refugees.
The risk of unfair application of the protections provided under the Regulation is high. Many observers have noted that refugee protection in Thailand is hampered by politicization and securitization. Human rights organizations have documented several cases of refoulement in Thailand in recent years. In many of these cases, the decision to return a refugee to their country of origin appeared motivated by a desire to pass out political favors to states that sought the return of high-profile exiles.
Furthermore, Thailand has a history of denying access to either Thai or UNHCR-led registration for entire nationalities or ethnic groups. Thai authorities have at times denied registration to those fleeing Myanmar and staying in camps along the Thai-Burma border. It has at times denied populations access to UNHCR. The drafting history of the Regulation itself highlighted that certain nationalities could be excluded for “special security issues” or if they seriously impact “international relationships.” The drafting history specifically made a note of Myanmar nationals fleeing fighting and Rohingya refugees in this category. It is not difficult to imagine that Thai authorities would seek to exclude others now fleeing Myanmar.
Thailand’s initial response to the crisis is highly concerning. On 9 March, Thai authorities intercepted and forcibly returned eight Myanmar nationals. On 28 March, authorities returned more than 2,000 Karen refugees that had fled the fighting. These actions and the deportation of both Myanmar migrants and refugees through the COVID-19 pandemic raise serious questions about Thailand’s response to the current crisis.
Now is the time for Thailand to show its commitment to the protection of refugees. Since the NSM is not yet operational, an affirmative application for protected person status under Section 16 — and the rights that would come with it — may be premature. Nevertheless, the Regulation is now law, and the rhetorical commitments made in enacting the Regulation should become equally concrete. Moreover, Section 15 of the Regulation provides, at a minimum, a legal basis for deferring any deportation proceedings of Myanmar refugees who claim protection.
In order to make good on its promises to protect refugees, Thai authorities should ensure that no one seeking to enter the country is turned away at the border and that those inside the country are protected from return. No one should be denied the chance to simply seek protection on the basis of “national security.” Moreover, Thai authorities should allow all humanitarian actors access to those fleeing Myanmar.
The international community also has an important role in ensuring that those fleeing Myanmar can access protection. In line with calls from those in Myanmar for the international community to do more than issue statements, states should work quickly and creatively to provide various protection options, including resettlement space and visas, to those still in Myanmar and those who reach Thailand. Contributing to Myanmar refugee protection must include direct assistance to Myanmar nationals at risk of persecution and engagement with the Thai government to enhance its refugee protection, not to mention engagement with other regional stakeholders.
Finally, the international community should closely monitor Thailand’s decisions and reasoning over the next few months. The way Myanmar refugees are treated — what type of access they will have vis-à-vis the NSM, what legal status they may be afforded, and what rights provided — will constitute an important case study in whether Thailand has truly committed to enhanced protection for those who need it. Additionally, the international community should take this opportunity to deepen relationships with grassroots organizations providing direct support to refugees and advocate for sustained engagement between the Thai government, UNHCR, embassies, and civil society.
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