Immigration detention of refugee and asylum seeking children in Thailand violates the rights of children under international law. The undocumented migrant children are detained for indefinite and prolonged periods without proper access to legal support. Human Rights Watch Two Years With No Moon: Immigration Detention of Children in Thailand Thailand is key transit route, host and final destination for refugees seeking asylum in southeast Asia and Australia. Hannah Summers "Child refugees held in 'harrowing' conditions across south-east Asia" The Guardian (June 2017). During the Universal Periodic Review (UPR) session in May 2016, various human rights issues including detention of refugee and asylum seeking children were reported. Thailand's Responses to UPR Recommendations & Voluntary Pledges. Currently, there are no effective alternatives to immigration detention and all sectors of population including children are subject to detention. Asia Pacific Refugee Rights Network Advancing the rights of refugees in the Asia Pacific region: Thailand (March, 2017)
Overview Arrest and detention of refugees
According to the UNHCR, the population of refugees in Thailand as of December 2016, was approximately 102,500 refugees of which 56,000 were children, mostly from Myanmar, Laos, Cambodia, Sri Lanka and Pakistan. United Nation High Commissioner for Refugees (UNHCR),Refugees in Thailand (accessed 20 August 2017).
Thailand is not a signatory to the 1951 Refugee Convention and does not have a formal asylum framework incorporated in domestic law. Thai Committee for Refugees Foundation Refugee Rights Situation in Thailand: Submission to the UN Universal Periodic Review, Second Cycle, 25th Session of the UPR Working Group of the Human Rights Council (April 2016) Instead, it relies on ad hoc policies established through Cabinet Resolutions. Fortify Rights A work in progress: Thailand's compliance with the International Covenant on Civil and Political Rights (March, 2017). Refugees and asylum seekers are treated as illegal migrants and lack of legal framework makes refugees vulnerable to arrest, detention, discrimination, deportation and refoulement. Asia Pacific Refugee Rights Network Advancing the rights of refugees in the Asia Pacific region: Thailand (March, 2017) Exploitation and abuse of refugees and asylum seekers by Thai authorities are common and there is limited access to justice. Migrants who are arrested and unable to pay bribes are likely to be taken to police lock-ups or Immigration Detention Centres (IDCs).
The UNHCR has raised concerns about the treatment of the asylum seekers, refugees and migrants and status of IDC facilities. Office of High Commissioner of Human Rights Concluding observations on the second periodic report of Thailand Human Rights Committee (March 2017). The Immigration Act, B.E. 2522 (1979) provides broad discretionary powers to police officers and immigration officials to detain and arrest migrants, including children. The law does not set maximum length of time that a person can remain in immigration detention. Indefinite detention without judicial review amounts to arbitrary detention which is prohibited under international law. Human Rights Watch Thailand: Migrant Children Locked Up
The UNHCR has limited role in Thailand and Thai authorities refuse to recognise "asylum Seeker certificates" issued by UNHCR and restricts protection of refugees, including children from arrest or detention by Thai police. Thai Committee for Refugees Foundation Refugee Rights Situation in Thailand: Submission to the UN Universal Periodic Review, Second Cycle, 25th Session of the UPR Working Group of the Human Rights Council (April 2016) at 26.
Rohingya refugees Over 100,000 refugees are from Myanmar of which 48,000 are children, make up the 90 percent of refugees in Thailand. United Nation High Commissioner for Refugees (UNHCR),Refugees in Thailand (accessed 20 August 2017). Many are stateless Rohingya Muslim minority who fled systemic persecution and discrimination from the Burmese Government. Asia Pacific Refugee Rights Network Advancing the rights of refugees in the Asia Pacific region: Thailand (March, 2017) at 2. A 2014 report by Human Rights Watch noted Thailand permitted 2,055 Rohingya to enter the country offering temporary protection but later treated them as illegal migrants and detained them in IDC. Human Rights Watch Two Years With No Moon:Immigration Detention of Children in Thailand at 16. The government does not allow the office of the UN High Commissioner for Refugees to conduct refugee status determination screenings for ethnic Rohingya from Myanmar. Human Rights Watch World report: Thailand events of 2016.
Urban refugees There are 3,801 urban refugees and 4,130 asylum seekers registered with UNHCR in ThailandUNHCR Thailand, pers. comm., 16 February 2017 and 2800 of which are children. United Nation High Commissioner for Refugees (UNHCR),Refugees in Thailand (accessed 20 August 2017). As they wait for refugee status determination by the UNHCR many are subject to poor treatment from Thai authorities, such as harsh and unlawful treatment by corrupt authorities and detained in IDCs for prolonged period until they could leave for third country resettlement. Thai Committee for Refugees Foundation Refugee Rights Situation in Thailand: Submission to the UN Universal Periodic Review, Second Cycle, 25th Session of the UPR Working Group of the Human Rights Council (April 2016)
International obligations
Thailand became a member of the United Nations on 16 December 1946https://www.un.org/press/en/2006/org1469.doc.htm [United Nations United Nations Member States and is party to a number of key human rights treaties. Thailand is a dualist state therefore international law does not automatically bind the government unless it has been incorporated and transformed into domestic law. Sorayut Chasombat "Treaty-Making Process in Thailand under Article 190 of the Constitution B.E. 2550" (2012) at 3.
Convention on the Rights of the Child Convention on the Rights of the Child (CRC) was ratified by Thailand in 1992, which mandates states to take best interests of the child as primary consideration. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 3. Article 2(1) provides states to respect and ensure rights of all children and must not be discriminate against based on religion, race, political affiliation or other status.
The CRC further obligates states to: ensure survival and development of children. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 6. prevent separation from parents against their will. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 9. protect from violence, abuse and neglect. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 19. ensure special protection for unaccompanied children. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 20. ensure highest attainable standard of health. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 24. adequate standard of living for physical, mental, spiritual, moral and social development. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 27. recognise child's right to play and recreation. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 31. protect from potential sexual abuse and exploitation. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 34. not be subjected to torture, cruel, degrading treatment and to be arbitrarily detained. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 37(a). use detention and arrest only as last resort, for shortest period. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 37(b). prompt legal access, assistance and challenge for children deprived of liberty. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 37(d).
Thailand has a reservation to Article 22, which mandates states to ensure refugee children receive protection and assistance in enjoying their rights and to cooperate with UN organisations to protect and assist reunification of child to the family. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990) Art 22.
International Covenant on Civil and Political Rights
Thailand ratified International Covenant on Civil and Political Rights (ICCPR) in 1996. It mandates states to:
not to subject anyone to torture, cruel, inhumane or degrading treatment. International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force 23 March 1976), art7. protect against arbitrary arrest or detention. International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force 23 March 1976), art4(1). enable access to court proceedings to anyone deprived of liberty by arrest or detention. International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force 23 March 1976), art9(4). provide humane conditions of detention. International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force 23 March 1976), art 10. protect children as are required by status as a minor, without discrimination to race, colour, sex, language, religion, national or social origin, birth. International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force 23 March 1976), art 24(1). The list of issues by the Human Rights Committee in relation to second periodic report of Thailand concerns various issues on Thailand's treatment of aliens and protection of children under articles 2, 7, 9, 10, 13, 24 and 26 of ICCPR. UN Human Rights Committee List of issues in relation to the second periodic report of Thailand Thailand has responded that it has refrained from deporting the refugees and the period of detention depends on the Refugee Status Determination and resettlement processes conducted by UNHCR.
Convention against Torture Thailand ratified Convention against Torture (CAT) in 2007, which obligates states to: not to expel, return ("refouler") or extradite a person to another state where there are substantial grounds that the person would be in danger of being subjected to torture. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 December 1984, entered 26 June 1987), art 3. prevent acts of cruel, inhumane or degrading treatment or punishment committed by public official. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 December 1984, entered 26 June 1987), art 16.
Refugee Convention Thailand is not a signatory and has not accepted the 1951 Refugee Convention in UPR's Recommendation & Voluntary Pledges (Second Review) in September 2016.
Children in detention facilities
Stateless refugee children and asylum seeking children whose refugee claim has been rejected may face indefinite periods in detention with little hope of release or repatriation. Asia Pacific Refugee Rights Network Advancing the rights of refugees in the Asia Pacific region: Thailand (March, 2017)
Conditions in detention