I. Failures of Thai Migration Policy

Labor Migration to Thailand

Migrant workers from Burma, Cambodia, and Laos make up a significant portion of the workforce in Thailand, with estimates ranging from 1.8 million to as many as 3 million workers and their family members, roughly equivalent to five to ten percent of Thailand’s workforce, plus their families.[1]

Long porous borders, ubiquitous networks of brokers and people smugglers, and the promise of high wages attract many Burmese, Cambodians, and Laotians to migrate to Thailand. In areas along Burma’s eastern border, Burmese ethnic minority migrants are fleeing human rights abuses by the Burmese government and armed forces and ethnic minority armies, as well as the economic hardship endemic to the region.[2]

Significant wage differences between Thailand and migrants’ home communities are factors encouraging migration. Migrants find they can earn more in Thailand, even when employers pay sub-minimum wages in violation of Thailand’s Labor Protection Act of 1998 (LPA).[3] Youth unemployment and underemployment in Burma, Cambodia, and Laos remain higher than in Thailand, as do current birth rates and the numbers of youth as a percentage of overall population.[4] Migration to Thailand has increasingly become an economic survival strategy for numerous rural families in neighboring countries.[5]

Thai employers complain it is becoming harder to find and recruit Thais into low-wage, labor-intensive work. Yet rather than upgrading workplace safety and improving wages, working conditions, and management practices, these same Thai employers turn to migrant workers who offer a fully flexible and cheaper workforce willing to do dirty, difficult, and dangerous jobs. Given the poverty that many migrants are fleeing and lack of protection offered by Thai authorities, employers frequently compel migrants to work long, exploitative hours, including through the night and on holidays. Employers find them easier to control because they either do not know of or are too intimidated to assert their rights under Thai labor laws.[6] They can be fired at will, and are less likely to organize a union or association to contest employer prerogatives. Employers often force migrants to accept daily wages and overtime rates below the legal minimum wage or intimidate and cheat them out of wages.[7]

Numerous Thai industries such as fishing and seafood processing, construction, agriculture and animal husbandry, and manufacturing (garment, textiles, and footwear) have essentially become dependent on documented and undocumented migrant workers as the core of their workforce. These low-cost workers in turn help maintain Thai export competitiveness.[8]

Regulatory Gaps and Failures

The majority of Burmese, Cambodian, and Laotian migrants to Thailand are undocumented, heightening the risk of abuse while compromising their access to legal protections and redress mechanisms. Undocumented migration is abetted by a weak migrant registration system in Thailand and ineffective or poorly implemented bilateral migration management schemes between Thailand and each of its three neighbors, defined in written memorandums of understanding (MOUs) on employment. Securing official travel documents is typically difficult, time-consuming, and expensive and most migrants do not obtain such documents.[9] A symbiotic relationship between people smugglers and corrupt government officials facilitates movement of migrants and placement in jobs, and, in some cases, contributes to human trafficking.[10]

While recognizing the continued importance of migrant workers to the Thai economy and the right of Thailand to regulate its workforce, Thai government policy continues to be dominated by national security concerns with little regard to workers’ basic rights. Provisions of the Alien Employment Act of 2008 illustrate clearly this undue emphasis on national security considerations. The act determines what work can be done by non-Thai workers and requires the location and duration of that work be determined in ministerial regulations that must explicitly take into consideration concerns of national security.[11] It provides broad discretion for investigators to conduct searches without court warrants if they believe there are undocumented workers on the premises.[12] The law imposes stiff criminal penalties, including imprisonment up to five years, on undocumented workers.[13]

Particularly worrisome are regulations accompanying the law that provide payments to informers for providing information or assistance in locating and leading to the arrest of undocumented migrant workers. NGO advocates continue to raise concern about this provision as providing an avenue for vigilantism against migrant workers.[14] The law also provides authority for an alien worker levy that is designed to discourage the use of migrant workers, though this legal provision has not yet been implemented.  Reflecting the government’s insistence that migrant workers are temporary, the Alien Employment Act also requires employers to make deductions from migrant workers’ pay into a government-controlled fund to cover the costs of deporting migrant workers.[15]

In principle, migrant workers are accorded the same rights under Thai labor laws as Thai nationals except for specific exclusions on the right to establish and lead a labor union. In each of the bilateral MOUs on employment of migrant workers between Thailand and its three neighbors, there is a specific provision guaranteeing that migrant workers will be protected in accordance with all laws of the receiving state.[16]

A new Thai migration policy requires that by February 28, 2010, all documented migrant workers in Thailand must formally apply to go through a nationality verification process with officials of their own government. All workers who do not apply will become undocumented from March 1, 2010, onwards.[17] After verification, migrants will receive a temporary passport from their own government in which a visa issued directly by Thai Immigration will be placed, thereby legalizing their entry into Thailand. Migrants with a temporary passport and visa will be permitted to travel throughout Thailand without restriction, which is a positive development for migrants’ rights. Unlike arrangements with Cambodia and Laos in which verification is done by consular officials of those countries in Thailand, the State Peace and Development Council (SPDC) government in Burma insists that all Burmese migrants must return to one of three border towns in Burma—at Kawthaung, Myawaddy, or Tachilek—to apply for nationality verification. By September 25, 2009, 118,916 migrant workers had completed the nationality verification process—57,609 Cambodians and 58,430 Lao, but only 2,877 Burmese.[18]

Nationality verification for Burmese started on July 15, 2009,[19] but since verification is determined by the SPDC, the procedures exclude ethnic Rohingya, a Muslim minority population in Burma that has long been denied citizenship by the Burmese government.[20] Burmese migrant workers report they are gravely afraid of being forced to reveal information to the SPDC about their relatives and family in Burma, subjecting them to possible reprisals or extortion.[21] Many long-term migrants, especially those from the Shan and Karen ethnic groups whose political leadership has been involved in long-term insurgencies against the Burmese military government, also expect they will not be included on SPDC citizenship registration lists. Finally, migrants express fear that they could face retaliation for returning to Burma without a passport or other appropriate document, which is a violation of Burma’s Immigration Act of 1947 (Emergency Provisions) and can involve penalties of six months to five years in prison, and a fine.[22]

A coalition of Thai trade unions and NGOs filed a complaint with the UN special rapporteur on the human rights of migrants concerning the Thai government’s failure to provide accurate information about nationality verification or to rein in illegitimate brokers who defraud and overcharge workers.[23] Refugee advocates have expressed concerns about mixed flows of migrant workers and persons fleeing persecution from Burma who are shut out from asylum procedures because of the Thai government’s unwillingness to allow screening of migrants for refugee status, including the more than 200,000 ethnic Shan long excluded from consideration as refugees as a matter of Thai policy.[24]

Both nationality verification and the opening of new, formal migration channels have far underperformed expectations, raising fundamental concern about whether these mechanisms are able to effectively replace the current migrant registration scheme. Efforts to persuade new migrant workers to enter Thailand through formal channels set out in bilateral MOUs also have foundered because of higher costs, longer delays in placement than the informal migration processes, weak implementation, and disagreements on issues related to recruitment and use of agencies. By the end of December 2007, just 14,151 migrant workers (7,977 Cambodians, 6,174 Laotians, but no Burmese) had traveled through formal government-to-government migration channels to be placed in jobs in Thailand.[25]

The Thai government’s national security concerns appear to extend to migrant children and newborns. Gen. Sonthi Boonyaratglin, the deputy prime minister who led the 2006 military coup d’etat, reportedly said on a visit to Samut Sakhon in November 14, 2007, that Thailand would solve the problem of migrant children by arranging for deportation of all pregnant migrant women and that Thailand’s National Security Council (NSC) would take the lead in this initiative. General Sonthi, who at the time was also the head of Internal Security Operations Command (ISOC), stated:

There have been many problems concerning high birthrates, disease control, conflicts with Thai people and among themselves along with social issues, which will all become long-standing problems. They [the migrants] may demand more and more for their rights. These problems may become unsolvable one day.[26]

NGOs, mainstream media, lawyers, and other groups strongly condemned the proposal, which was quietly allowed to lapse when Prime Minister Gen. Surayudt Chulanont’s military-appointed government stepped down in December 2007.[27] But the initial proposal reaffirmed the perception among registered migrant workers that Thai government policy is discriminatory, and government officials cannot be trusted to ensure that their basic rights are respected. Even though Gen. Sonthi was unable to implement his proposed policy, there was a chilling effect on pregnant migrant women’s willingness to seek medical assistance.[28]

In a positive move made in October 2009, the Thai government began permitting registration of children of registered migrant workers holding work permits. However, in some cases, local officials insist on onerous documentation requirements that effectively frustrate this benefit.[29]

Migrants Rights under International Law

Thailand is party to the major international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR),[30] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[31] the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD),[32] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).[33] Thailand has also ratified many, but not all, of the major labor rights conventions of the International Labor Organization (ILO).

International human rights law protects the rights of non-citizens as well as citizens. Under the ICCPR, a state is obligated to respect and ensure the human rights of “all individuals within its territory.”[34] Non-citizens who have entered and reside in a state are entitled to all rights under the ICCPR except political rights, such as the right to vote and run for office.[35] Thus while article 25 of the ICCPR limits political rights to “[e]very citizen,” article 26 ensures that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law”[36]

These protections for migrants extend to economic, social, and cultural rights. According to the Committee on Economic, Social and Cultural Rights in its General Comment No. 20 on non-discrimination, “The ground of nationality should not bar access to Covenant rights.... The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.”[37]

While the convention against racial discrimination, ICERD, provides for the possibility of differentiating between citizens and non-citizens,[38]the Committee on the Elimination of Racial Discrimination (CERD) in its General Recommendation on discrimination against non-citizens, noted that this provision “must be construed so as to avoid undermining the basic prohibition of discrimination” as set out in other human rights treaties, such as the ICCPR and the ICESCR.[39]Thus while some political rights may be confined to citizens, states are under an obligation to guarantee equality between citizens and non-citizens as recognized under international law.[40]Therefore, “differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the [ICERD], are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.”[41]

Of particular relevance to the administration of justice in Thailand, the CERD recommends that states “[e]nsure that non-citizens enjoy equal protection and recognition before the law and ... ensure the access of victims to effective legal remedies and the right to seek just and adequate reparation for any damage suffered as a result of [discriminatory] violence.”[42]The CERD also calls for states to “[c]ombat ill-treatment of and discrimination against non-citizens by police and other law enforcement agencies and civil servants by strictly applying relevant legislation and regulations providing for sanctions and by ensuring that all officials dealing with non-citizens receive special training, including training in human rights.”[43]Claims of discrimination brought by non-citizens should be “investigated thoroughly,” and those against officials should have “independent and effective scrutiny.”[44]

The CERD also urges states to remove obstacles that prevent the enjoyment of economic, social, and cultural rights by non-citizens, notably in the areas of education, housing, employment, and health.[45]States should also “[t]ake measures to eliminate discrimination against non-citizens in relation to working conditions and work requirements, including employment rules and practices with discriminatory purposes or effects,”[46] and “to prevent and redress the serious problems commonly faced by non-citizen workers, in particular by non-citizen domestic workers, including debt bondage, passport retention, illegal confinement, rape and physical assault.”[47]The CERD noted that while states may refuse to offer jobs to non-citizens who lack a work permit, all individuals working are entitled to the enjoyment of labour and employment rights, including the freedom of assembly and association.[48]