A new era for refugee protection in Thailand?

Visitors check out an art exhibition on the plight of refugees in Thailand, organised by Amnesty International and partner agencies at the Bangkok Art and Cultural Centre. (Photo by Arnun Chonmahatrakool)

On Sept 26, 2016, Prime Minister Prayut Chan-o-cha pledged to establish a national screening mechanism to distinguish people in need of international protection from other migrants in Thailand, implicitly acknowledging Thailand's responsibility towards refugees for the first time. Now, in 2020, Thailand is poised to make good on the commendable commitments made. The National Screening Mechanism will come into effect in June, legally recognising, for the first time, a category of non-citizens who would be at risk if deported. Human rights advocates, refugees and Thai civil society are cautiously optimistic that the much-anticipated policy could usher in a new era of humanitarianism in Thai immigration policy.

In the absence of a national refugee policy, Thailand historically has left refugee protection to the United Nations High Commissioner for Refugees (UNHCR). UNHCR has utilised internationally recognised criteria to determine who fulfills the rigorous criteria for recognition as "refugees". Until they are determined not to fit the definition, they should not be returned to states where they risk persecution.

The mechanism contains some potentially fatal flaws, but also a real possibility of better protection for refugees. If Thailand builds upon the proposed regulation, it could become a regional leader in operationalising fair processes that protect refugee rights. It could create a regional milestone.

However, the most obvious difficulty posed by the mechanism regards the lack of a definition of people "deserving of protection". The committee could adopt the international legal definition of a refugee, bringing Thailand in line with international norms and ahead of many of its neighbours, while reducing the challenge of "re-inventing the wheel" and enabling Thailand to utilise a definition that has been debated for decades.

The second, arguably larger problem, regards when and how asylum seekers become protected. Under the proposed mechanism, asylum seekers must submit an application for protection to a "Competent Official" who then has 30 days to make a determination (essentially a pre-screening). If the official determines that the applicant is eligible to submit a second application, the asylum seeker has 60 days to submit this second application and receives both documentation and freedom of movement. Thailand has granted refugees the right to education and healthcare, but they would only receive these once they are recognised as Protected Persons. Further, if the official finds that the asylum seeker is not eligible, that person has 15 days to appeal. If the asylum seeker fails to submit within this time, they would be subject to detention and/or deportation.

Practical questions abound. Will the authorities accept applications in any language, or only in Thai? Will the asylum seekers have access to legal counsel? If so, how will the legal counsel be notified of new cases? Will interviews be required? If so, at what stage? Relying wholly on written applications would disadvantage persons who cannot read or write, and could lead to incorrect rejections -- and, by extension, deportation followed by persecution. Once decisions are made, how will the authorities contact asylum seekers, if they rarely have fixed addresses and may not have a stable phone number? The committee will have to decide, and would do well to regularly consult refugees, asylum seekers and civil society groups to identify issues early on.

Asylum seekers might reasonably worry that the information they provide could be used to round them up and detain or deport them before their case is decided. For example, the existing mechanism grants the committee the duty and authority to promote cooperation and coordination with the relevant foreign government with respect to the action to be taken upon the protected person. This risks undermining the fundamental concept of protection, as in many cases asylum seekers are fleeing persecution by their state; it could discourage people who deserve protection from applying for it. To prevent this from happening, the Thai authorities need to create a firewall around the applications -- a critically absent component, but one that the committee could address.

Secondly, with all of these practical questions, it is easy to see how the screening could face massive delays. According to UNHCR estimates, there are roughly 100,000 refugees and asylum seekers in Thailand. The obvious first step to reduce the workload (and, by extension, the cost) would be to defer to previous UNHCR determinations and grant all UNHCR-recognised refugees Protected Person status. This goes hand-in-hand with adopting the internationally recognised definition of "refugee".

Further, the mechanism presently does not require the officials to provide an explanation for rejecting an application. Without an explanation and the right to appeal, the asylum seeker does not have a meaningful opportunity to contest a determination. Some asylum seekers might therefore provide as much detail as possible, requiring the appeal committee to spend more time reviewing each application. To avoid this and to increase fairness, the Committee could require that any rejection include an explanation and ensure that rejected applicants have the right to appeal at the second stage.

A myriad of further questions exists.

With the National Screening Mechanism, Thailand seems to have taken one step forward in fulfilling its pledges to protect refugee rights. Still, the path towards protection is long and the Committee has much to consider; it is our sincere hope that they meaningfully engage with civil society and refugees themselves to ensure that the transition is as smooth, fair and effective as possible.