Administrative Procedures: Arrest , Detention & Deportation of Migrants

Administrative Procedures:Arrest, Detention & Deportation of Migrants Prepared for the Training Course on Labour Migration Management in the GMS, December 2009 Mekong Migration Network (MMN)

International Human Rights Framework on Arrest, Detention and Deportation

International Human Rights Framework (1) • All UN member states have accepted the six core human rights treaties (protecting civil political economic social and cultural rights, and specific protection for children and women, and against racial discrimination, and against torture.) • The central principles are non-discriminatory and egalitarian; human rights therefore are universal.

International Human Rights Framework:The Right to Move • The right to move freely is enshrined in the Universal Declaration of Human Rights and other international conventions. • On a practical level, the HR Committee has stated that this right must include the right to obtain the necessary travel documents. 27 May 2007

International Human Rights Framework: Deportation/Expulsions (1) • Protection against deporting people who would consequently face serious human rights violations. • Refugee Convention, Article 33: Principle of “non-refoulement” = “no state party shall expel or return (“refouler”) a refugee in any matter whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”

Deportation/Expulsions (2) • CAT Article 3: prohibits state parties from expelling a person to another state where there are substantial grounds for believing that the would be in danger of being subjected to torture. • CERD general recommendation: national laws on expulsion should not discriminate, in purpose or effect, against foreigners on the basis of race, colour, or ethnic or national origin, and that non-citizens should have equal access to the right to challenge expulsion orders. • CERD committee also recommends that expulsion of long term residents should be avoided when such would result in disproportionate interference with their right to a family life.

Deportation/Expulsions (3) • The 2000 Protocol or Prevent, Suppress and Punish Trafficking of Persons, Esp Women and Children, Article 7: States “shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in their territory, temporarily or permanently, in appropriate cases.” 27 May 2007

Deportation/Expulsions (4) • MWC Article 22: prohibits mass expulsion; also states that the persons concerned (deportees) shall have a reasonable opportunity before or after departure to settle any claims for wages and other entitlements due to him or her any pending liabilities (e.g. belongings). 27 May 2007

Deportation/Expulsions (5) • MWC Article 23: In the case of expulsion, the person concerned shall be informed without delay of his or her right to have recourse to the protection and assistance of the consular or diplomatic authorities of the state of origin, and the authorities of the expelling state shall facilitate the exercise of such right. • These rights apply to all migrant workers and members of their families, regardless of their legal status.

Methods of Deportation and Expulsion • When executing a deportation order, states are bound by their obligations to respect the right to life or physical integrity and should not subject any person, including any foreigner being expelled from the country, to cruel, inhumane or degrading treatment. 27 May 2007

Arrest and Detention • Migrants have the right to liberty and to freedom from arbitrary detention (UDHR, ICCPR, MWC) • “No person under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person” (the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by General Assembly resolution 43/173 in 1988)

The articulation of the rights of migrants during arrest, detention and deportation is dispersed across a number of treaties, customary law provisions and non-biding agreements. • This results in a lack of consistency in the implementation of the provisions, with the result that migrants’ rights are afforded less respect. 27 May 2007

Arrest, Detention and Deportation in the GMS

Research background/methodology: • Based on the MMN research in 2006-7 • Interviews/case studies: 50 or more migrants/migrant returnees were interviewed in each country • Key informant interviews: each CRT interviewed policy makers, local authorities, NGO staff, etc. • Secondary research: literature review, newspapers, internet etc.

ADD in the GMS: Background (1) • Apart from the small number of migrant workers migrating with a passport through the MOU process, the majority of other migrants in the GMS migrate to its neighboring countries through informal channels.

ADD in the GMS: Background (2) • The vast majority come with no documentation whatsoever. Not all people in the Mekong region are documented in their own countries, some of the national ID processes have not reached all the rural populations, particularly ethnic minorities. Those who do have national ID cards do not usually bring the cards with them to the country of destination for fear of losing them or the cards being confiscated by employers or authorities. • Migrants are thus liable to arrest, detention and deportation in many of the GMS countries for having entered illegally and liable to punishment on return to their home country for having left and re-entered illegally.

ADD in the GMS: Background (3) • Even for the migrants who’re registered, they’re not free from the risk of being arrested. • The migrant workers card is deemed only valid when the authority can verify that the migrant is actually working for the employer named on the card, in the type of work and the geographical area designated on the card.

ADD in the GMS: Background (4) • The specificity of this legal status allows for authorities to find an excuse to arrest migrants in any situation they deem unacceptable.

ADD in the GMS: Background (5) • In addition, it is common knowledge that many employers withhold the work permit as a means of controlling the worker and ensuring that the worker does not leave and find work somewhere else. Confiscating personal documents is explicitly against the law but no case has ever been brought against an employer for breaking this law.

ADD in the GMS: Background (6) • There is an underlying message being relayed to migrants 24 hours a day, 365 days a year: you can be arrested, detained and deported. This message in turn controls the migrants, warns them against taking any actions against abuse and exploitation, discourages them from exercising their social and religious rights, and ensures that there is little integration of the migrant community in Thai society.

Arrest procedures (1) • There was no consistency in the arrest procedures as reported by the migrants interviewed. Some migrants were handcuffed during arrest, others were not. Some migrants were fingerprinted, others were not. • The majority of migrants interviewed reported being offered the opportunity of paying money to the police to be released when they were arrested, usually before they were taken to the police station. • In addition to being asked for money, many migrants interviewed reported having their belongings confiscated during the arrest procedure and not having the belongings returned to them.

Arrest procedures (2) • Many migrants reported that arrests happen at midnight. • Given the increased risk to safety, the MMN recommends the relevant authorities in the region cease the practice of night-time arrests and dawn raids. • In other cases, the arrest of migrants as illegal entrants was used as an excuse to perform a drug search. • The performance of full body searches of migrant women in isolated areas by male officials is a violation of women’s rights to bodily integrity and invites opportunities for further sexual abuse.

Detention procedures (1) • The conditions and length of detention vary from place to place without any logical explanation. However, all migrants in all countries complained that they were not informed about the legal procedures governing their detention including the length of time they would be held.

Detention procedures (2) • In some cases, migrants are working in areas far from the border and this involves several stops in police cells, immigration detention centres on their way to the border. During the course of arrest, detention and deportation, migrants pass through many different holding cells, generally all migrants will experience the holding cell at the local police station, some will then be taken to the immigration detention centre, and then again a police station or immigration detention centre on the border.

Deportation (1) • During deportation, migrants report being herded onto old vehicles, denied sufficient food, water and toilet stops for the journey and generally being treated without any dignity. • Migrants returning to their countries of origin are viewed as having violated the law for leaving their home countries illegally. • Hence migrants from many of the GMS countries are liable to lectures, punishment and fines on return to their home countries if they are deported officially.

Deportation (2) • Arrest, detention and deportation not only means that migrants have to survive without any income during the process but in addition many of the steps in the arrest, detention and deportation processes demand money from the migrants. • In some cases, the employers paid for these processes, in others the employers advanced the money to be later deducted and in other cases the migrants borrowed money from relatives, friends or brokers. • The debts thus incurred by the process of arrest and detention are likely to not only encourage migrants to return to the country of destination to try and pay off the debts, but also to push migrants into situations of debt bondage and trafficking.

Conclusion and Recommendations (1) • The MMN research raises questions not only regarding the legitimacy of the procedures utilised but also the rationale justifying the arrest, detention and deportation of migrants in the Greater Mekong Sub-region.

Conclusion and Recommendations (2) • The study shows how the lack of legal channels for migration in the GMS forces migrants to cross borders illegally and consequently endanger their lives. Migrants’ lives are placed at serious risk when they must resort to clandestine means to migrate, such as hiding in containers, setting sail on rickety boats, or scrambling through landmine infested border areas. • Criminalising these migrants only opens the door for brokers to defraud and exploit migrants and for corrupt government officials to extort bribes.

Conclusion and Recommendations (3) • The Mekong Migration Network recommends that GMS governments provide proper channels for all people to legally migrate for the purposes of work and suggests that if the concern of the governments is that migrants are arriving into the country without documents, a simple remedy could be to directly issue documents to migrants at the border.

Conclusion and Recommendations (4) • Abusive and exploitative working conditions regularly push migrants into an irregular status, making them more vulnerable to arrest, detention and deportation. • The report raises the possibility of creating a one stop service to document undocumented migrants in the workplace as an alternative to employing harsh enforcement measures.

Conclusion and Recommendations (5) • Migrants report that they may be subject to arrest anywhere and at anytime and that there is little they can do to protect themselves from being arrested. • The arbitrary application of the law threatens any confidence migrants have in the legal system, not to mention provokes discontent and frustration.

Thank you very much! Mekong Migration Network (MMN) www.mekongmigration.org

Administrative Procedures: Arrest , Detention & Deportation of Migrants