Blog post by Jautporn Cheewasrirungruang*
Thailand has a long-standing history of hosting refugees in the region, including Indochinese refugees during the 1970s and 1980s following the fall of Saigon (1975) and the Khmer Rouge regime (1979), Myanmar refugees from the 1980s to the present, and urban refugees since the 1990s. However, while Thailand’s humanitarian tradition is commendable, its current immigration policies create significant challenges for refugees who remain in legal limbo. Despite its strategic location and regional role in hosting Indochinese refugees from neighboring countries since the late 1970s, Thailand remains a non-signatory to the 1951 Refugee Convention and its 1967 Protocol, leaving refugees vulnerable to detention and exploitation.
In 2019, Thailand introduced two significant legal instruments to enhance refugee protection, namely the National Screening Mechanism (NSM) and the Memorandum of Understanding on the Determination of Measures and Approaches Alternative to Detention of Children in Immigration Detention Centers B.E. 2562 (ATD MoU). The NSM was designed to formalize refugee protection, while the ATD MoU sought to prevent the detention of children. However, gaps in implementation persist. The NSM lacks clear procedural guidelines and has faced delays, with Standard Operating Procedures (SOPs) only being finalized in September 2023. The ATD MoU, while promising, has limited practical impact, as alternatives to detention are inconsistently applied.
These challenges create a legal limbo for refugees who cannot return to their home countries, integrate into Thailand, or access third-country resettlement. As a result, many face indefinite detention in Immigration Detention Centers (IDC), violating international human rights norms. This article explores how Thailand’s existing legal framework—particularly Articles 19, 20, and 54 of the Immigration Act together with the recently enacted Anti-Torture and Enforced Disappearance Act (Anti-Torture Act) in 2022—can be used to address this issue. In particular, the judicial review mechanism of habeas corpus offers a potential legal remedy and redressing mechanism, yet Thai courts have been hesitant to apply it due to political constraints.
1. The Problem: Indefinite Detention Under Article 19
Article 19 of the Immigration Act stipulates that any foreigner who enters or remains in Thailand without legal permission is subject to arrest, detention, or expulsion. Since Thailand is not a signatory to the 1951 Refugee Convention, asylum seekers and refugees fall within this category, making them particularly vulnerable to:
- Prolonged detention in IDCs due to the absence of implementable legal alternatives.
- Legal limbo, as they cannot return home due to persecution but also cannot integrate into Thai society or access resettlement if not accepted by a third country.
- Lack of judicial oversight, since Thai courts generally refrain from intervening in immigration detention cases.
Although the NSM was established to identify individuals eligible for protection, its effectiveness remains uncertain. It only became operational in late 2023, and there is little information regarding how many people have been granted Protected Person status or what rights that status entails. The uncertainty surrounding NSM implementation, combined with the strict enforcement of Article 19, results in the systematic and indefinite detention of refugees.
2. The Solution: Using Articles 20 and 54 of the Immigration Act and Article 13 of the Anti-Torture and Enforced Disappearance Act as Legal Safeguards
While Article 19 of the Immigration Act justifies detention, Article 20 provides a mechanism for exceptions to immigration detention. It grants the Minister of the Interior the discretion to allow individuals to remain in Thailand despite their irregular immigration status. This article could serve as a legal basis for alternatives to detention (ATD), particularly for refugees who cannot be deported. However, its application remains rare.
Similarly, Article 54 of the Immigration Act outlines alternatives to detention for individuals awaiting deportation. These include:
- Release under bail conditions or periodic check-ins with authorities.
- Assignment to a designated residence instead of prolonged detention.
Although immigration detention is legally permissible, it is intended as a last resort, obligating the government to consider alternatives first. By utilizing Articles 20 and 54 together, Thailand could establish a systematic and humane approach to ATD, in line with international human rights standards.
Thailand’s Commitment Under the Anti-Torture Act
In 2022, Thailand took a significant step by domesticizing the Convention Against Torture (CAT) into domestic law through the Anti-Torture Act. Under Article 13, the law explicitly states that the Thai government must not deport persons to a country where they may face torture. This provision aligns with Thailand’s international obligations and further strengthens the case for judicial review in immigration detention cases.
Article 13 of the Anti-Torture Act, if properly applied, could serve as an additional safeguard against indefinite detention by providing a legal basis to challenge deportation orders for individuals at risk of torture. Application of Article 13 also reinforces the argument for alternatives to detention when removal is not possible due to protection concerns.
In order to invoke the application of the Immigration Act’s Article 12 and 54 together with Article 13 of the Anti-Torture Act, the most possible entry point is to seek a judicial review through habeas corpus which is allowed under Article 90 of the Criminal Procedure Code.
3. Why is Judicial Review (Habeas Corpus) Necessary?
What is Habeas Corpus?
Habeas Corpus is a legal remedy that challenges unlawful detention. If applied, it would allow Thai courts to review the legality and necessity of detention for refugees held indefinitely. More importantly, it also compels the courts to assess the human rights implications of continued detention in cases where deportation is legally or practically impossible.
Why Have Thai Courts Not Used Habeas Corpus for Refugees?
- Political Sensitivities and Judicial Hesitation: Immigration policy is often tied to national security concerns rather than refugee protection. A notable example is the Habeas Corpus case filed in 2015 on behalf of Uyghur asylum seekers who arrived in Thailand in 2014 and were detained in an IDC. The petition, which challenged indefinite detention under Articles 20 and 54, was dismissed and resulted in the deportation of the group in July 2015, signaling the judiciary’s reluctance to engage in politically sensitive cases.
- Lack of Precedent: Since the 2015 case was dismissed, no significant ruling has established a legal standard for applying Habeas Corpus in immigration detention cases.
How Could Habeas Corpus Work in Thailand?
Article 90 of the Criminal Procedure Code provides that the detainees (directly or through lawyers), public prosecutors, or police investigators can challenge the legality of detention by filing a petition to the court. In the context of immigration detention of refugees or asylum seekers, the argument can be raised that an indefinite detention of refugees violates fundamental human rights.
The Court may interpret Article 20 or Article 54 of the Immigration Act as a legal basis for granting release or temporary legal status, thereby rendering prolonged immigration detention null and void. Additionally, Article 13 of the Anti-Torture Act may serve as a supplementary legal ground, justifying immigration detention in cases where individuals face heightened risk of torture upon return to their country of origin. A successful ruling would set a precedent, encouraging Thai courts to conduct rights-based reviews of detention cases and reinforcing Thailand’s adherence to international human rights obligations. This approach can transform habeas corpus from a reactive legal tool into a proactive protection mechanism, addressing Thailand’s dual challenges of maintaining immigration control while respecting human rights.
4. Conclusion
Despite practical challenges in implementing the NSM and the ATD MoU, Thailand possesses the legal tools (Article 20 and 54 of the Immigration Act and Article 13 of the Anti-Torture Act), historical precedent (its longstanding refugee-hosting role), and international obligations (human rights treaties) to justify ending indefinite detention. Judicial review through Habeas Corpus could serve as a critical mechanism to push for existing legal frameworks as an alternative to detention.
Given Thailand’s history of hosting refugees and its engagement in protection efforts, invoking habeas corpus should not be seen as a radical step but rather as a natural extension of its existing commitment to humanitarian principles. Judicial review could align with Thailand’s historical openness in providing refuge to those in need, strengthen Thailand’s international reputation as a regional leader, particularly as a recently elected member of the UN Human Rights Council and in line with its commitment to non-politicization of human rights. Most importantly it provides a legal safeguard against indefinite detention, ensuring that refugees are treated in accordance with international human rights standards.
By leveraging its own legal framework and judicial mechanisms, Thailand has the opportunity to shift from a detention-centric model to one that prioritizes human rights and protection for refugees. The time to act is now.
*Ms. Jautporn Cheewasrirungruang holds a Postgraduate Certificate in Refugee Protection and Forced Migration Studies from the School of Advanced Study, University of London. She has worked with UNHCR across multiple operations—including Thailand, Bangladesh, South Sudan, Iraq, and Uganda. While working in Thailand’s operation, her works included a focus on protection, policy advocacy, and strategic litigation for refugees and asylum seekers.
The views expressed in this article are solely those of the author and do not necessarily reflect the views of UNHCR or any affiliated organizations.
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