VIII. Recommendations

To the Royal Thai Government

In regard to both refugees and migrants:

Ratify the 1951 Convention relating to the Status of Refugees and it 1967 Protocol.
Abandon the current policy of the Royal Thai Government that only those fleeing armed conflict are entitled to protection and temporary stay in Thailand, and apply the internationally accepted definition of a refugee.⁸¹ Those fleeing Burma should be treated as refugees where there is a well-founded fear of persecution for one of the reasons stated in the Refugee Convention, regardless of whether or not this is experienced in the context of armed conflict. An end to fighting in Burma does not in itself mean an end to political, ethnic, and other persecution.
In the absence of a state procedure for assessing the claims of Burmese asylum seekers, allow UNHCR to resume Refugee Status Determination activities for all asylum seekers from Burma in accordance with its mandate to provide international protection to refugees.
If the Provincial Admission Boards are reactivated in order to determine the claims of asylum seekers from Burma, such boards must operate under a transparent and consistent procedure and employ unambiguous criteria in status determination that comply with standards set out in international refugee law. All asylum seekers from Burma, regardless of their background or ethnicity, should be entitled to make an asylum claim to such Boards. Status determination should take place on a case-by-case basis, with the right to appeal to an independent body, such as UNHCR.
Respect its obligation, under customary international law, not to refoule (forcibly return) any asylum seeker or refugee to Burma. Specifically, the Royal Thai Government should:

Guarantee access to proper screening and status determination procedures for any Burmese asylum seeker or migrant who wishes to make an asylum claim, prior to deportation or forced return. Ensure that all migrants wishing to apply for asylum have the practical means to do so and are not barred from making such application by Thai local authorities.
Continue to permit UNHCR to have access to detention and immigration centers in order that asylum seekers and refugees may identify themselves to UNHCR, which should be authorized to meet privately with potential asylum seekers upon request.
Ensure that no Burmese who has been recognized as a refugee by UNHCR is deported to Burma on the grounds that he or she is an illegal migrant, or for any other reason.
Permit all Burmese who have been recognized as refugees by UNHCR and wish to reside in refugee camps to do so, without having to be submitted to re-screening by the Thai government.
Support international efforts to resettle Burmese refugees in accordance with the criteria set out in UNHCR’s Resettlement Handbook,⁸² and extend resettlement options to the refugee camp population.
Ensure that all Burmese refugees in the camps are provided with protection and assistance, including adequate health care, shelter, and educational opportunities. Remedy concerns about the absence of outside communication by providing access to telephones and opening the refugee camps and immigration holding centers to personal visits.
Remove all restrictions on the media and allow journalists unhindered access to all Burmese refugee camps, in the interest of promoting press freedom, government accountability, and the fair and humane treatment of Burmese refugees. Permit members of the press to speak to and interview Burmese refugees.

Specifically in regard to Burmese urban refugees:

Recognize that some Burmese refugees living in urban areas will not be able to move to the refugee camps on the border because of security, medical, or educational reasons.
Prior to any proposed move to the camp, authorize UNHCR to make an assessment, in accordance with agreed criteria, as to those refugees who should not be required to be relocated to the camp.
While urban refugees are being processed for resettlement, allow them to remain in their current location if they so desire.
For those persons whose safety cannot be guaranteed at the border, the government must either provide a safe place of refuge in urban areas or elsewhere in Thailand, providing adequate protection and assistance, or make resettlement an available option.
Change the visa requirement for Burmese nationals and allow for the lawful presence of refugees in urban areas, thereby reducing incentives for corruption, harassment, fraud, or other criminality.
Respect the right to freedom of movement, expression, and assembly of all refugees, whether living in camps or urban centers, consistent with the Universal Declaration of Human Rights and articles 12, 19, and 21 of the International Covenant on Civil and Political Rights, to which Thailand is a state party.
Immediately release the twenty-three Burmese refugees and asylum seekers remaining in the Special Detention Center in Bangkok, who were arrested in June and September 2003 while conducting peaceful rallies at the Burmese embassy in Bangkok. Those among this group of refugees who are unable to relocate to the camps for security or protection reasons should be placed in safe housing in Bangkok while UNHCR prepares their case for resettlement submission.

Specifically in regard to migrants:

Permit representatives of migrants’ groups, humanitarian agencies, legal services agencies, intergovernmental bodies, UNHCR, and nongovernmental organizations to visit migrants in holding centers and detention facilities to provide basic humanitarian and legal support and to monitor conditions of detention.
Provide undocumented migrants prompt and effective opportunity to challenge the lawfulness of both their detention and deportation order in a judicial proceeding or before another competent authority. Continued detention should be subject to periodic review.
Provide detainees with access to legal counsel, including information about how to contact their government-appointed lawyer, a private lawyer, or non-governmental organizations providing free legal assistance, and the means to contact such advocates. Lawyers should have unhindered access to their clients in detention facilities.

To the United Nations High Commissioner for Refugees (UNHCR)

Advocate at the highest level with the government of Thailand to ensure that the government establishes procedures, in accordance with international refugee law, to determine the claims of asylum seekers from Burma.
In the absence of any state procedure for assessing the claims of Burmese asylum seekers, advocate with the Thai government at the highest level for permission for UNHCR to resume Refugee Status Determination activities for Burmese asylum seekers, in accordance with UNHCR’s mandate to provide international protection.
Advocate for the highest standards of protection for all Burmese refugees, whether they are fleeing a conflict zone or political persecution in their home country. In particular, advocate that protection and assistance to be provided to Shan and other minority groups from Burma who have been denied entry into the camps.
Take steps to ensure that the Thai government does not forcibly return Burmese asylum seekers or refugees, in particular by:
Enhancing UNHCR’s protection presence in border areas.
Monitoring immigration detention centers and holding camps for migrants in Bangkok and in provinces with large communities of Burmese workers (Chiang Mai, Chiang Rai, Tak, and Ranong), so that asylum seekers and recognized refugees have the opportunity to identify themselves. Insist that the Thai government provides authorization for UNHCR to meet privately with asylum seekers and refugees.
Enhance UNHCR’s protection capacity in the refugee camps in order to help ensure that refugees in the camp receive adequate protection and assistance, and access to UNHCR.

In regard to voluntary repatriation:

Insist that any voluntary repatriation programs be conducted under U.N. auspices and fully comply with international standards.
Reject proposals for non-U.N. sponsored repatriation programs, especially repatriation to “safe zones” in Burma negotiated between rebel factions and the SPDC.
Ensure that refugees are not pressured to repatriate against their will by governments, international institutions, armed groups, or refugee factions, and that Thailand continues to provide protection and asylum to refugees who do not wish to repatriate or resettle.
Obtain guarantees that UNHCR will have unfettered access to Burma to monitor conditions before, during, and after repatriation so that safeguards are in place for refugees’ treatment upon return.

In regard to urban refugees:

Recognize that some Burmese refugees living in urban areas will not be able to move to the camps, for protection, security, medical, or educational reasons. Advocate with the Thai government that these refugees be provided with alternative solutions, including being permitted to remain in urban areas and provided with adequate protection and assistance, or resettlement abroad. Press the Thai government to allow greater opportunities for resettlement of Burmese refugees.
Press the Thai government to allow urban refugees who are being processed for resettlement to remain in their current location if they so desire.
Advocate with the Thai government for UNHCR to be able to make an assessment, in accordance with agreed criteria, as to those refugees who should not be required to be relocated to the camps.
Insist that any screening of urban asylum seekers for camp placement take place prior to entry into a camp.
Assess the ethnic, religious, and political divisions within both the urban refugee population and the refugees in the camps, in order to effectively evaluate potential protection problems in the camps arising from power struggles and social dynamics. Conduct an in-depth assessment of military activities and the security situation in and around all of the camps, particularly the new sites for Mae Khong Kha camp.
Follow through on UNHCR’s Evaluation and Policy Analysis Unit’s recommendation to revise 1997 Policy on Refugee in Urban Areas, focusing in more detail on methods for providing adequate protection and assistance to refugees living in urban areas. ⁸³

To Donor Governments

Insist that the Thai government immediately authorize UNHCR to conduct Refugee Status Determination activities for Burmese with new or pending asylum claims in Thailand, in accordance with UNHCR’s mandate.
Support UNHCR’s effort to resettle Burmese asylum seekers in accordance with the criteria set out in UNHCR’s Resettlement Handbook.⁸⁴
Press the Thai government to abandon its current policy that only those fleeing armed conflict are entitled to protection and temporary stay in Thailand.
Fund protection and assistance programs in the Burmese border camps and for urban refugees in Bangkok and other urban centers.
Increase support for UNHCR and NGOs to provide protection, housing, food, education, and medical assistance to asylum seekers and refugees living in urban areas. In particular, increase funding to UNHCR so that it can enhance its protection capacity in the refugee camps and at the border and increase the number of protection officers based not only at the Bangkok Immigration Detention Center but also at immigration detention centers and holding camps on the Thai-Burma border.
Actively intervene with the Thai government in support of UNHCR in its protection role in Thailand and make more frequent visits to the border to directly assess conditions there.

To the Burmese Authorities

End the abuses that have forced Burmese to flee to Thailand and seek asylum by establishing the rule of law and respect for human rights for all the people of Burma.
Release all political prisoners, including members of the opposition National League for Democracy, who have been sentenced to long prison terms for the peaceful expression of their views, and end the widespread torture and ill-treatment of detainees. Re-engage in dialogue with Aung San Suu Kyi and the National League for Democracy.
Cease the widespread use of forced labor by the military, where villagers are compelled to work without pay on infrastructure and agricultural projects, as porters in army camps, and on the construction of temples.
Cease the conscription of children under the age of eighteen for the armed forces.
Cease the forcible relocation of minority villages in areas where ethnic minority activists and rebels are active, and in areas targeted for economic development and tourism. End abuses by Burmese government troops in which villages, hospitals, and schools in ethnic areas are burned or otherwise destroyed, villagers are conscripted to perform forced labor, and suspected opponents of the regime are executed.
End the systematic rape of women and girls in Shan State and other regions by the Burmese military.
Lift restrictions on free expression, assembly, and association in order to allow space for legitimate peaceful political activities.

⁸¹ See footnote 3, above, for the definition of a refugee as defined under international law and the Refugee Convention. In addition, UNHCR stated in its 1994 Note on International Protection, that it has always been understood that “the basic definition of refugee was meant to have an inclusive meaning, rather than a restrictive one, in accordance with the fundamental objective of providing international protection to all who need it.” See Paragraph 25, Note on International Protection submitted to 45th session of the Executive Committee of the High Commissioner’s Program, September 7, 1994.

⁸² UNHCR’s resettlement criteria include immediate or long-term threat of refoulement to the country of origin, threat of arbitrary arrest, detention, or imprisonment, and threat to physical safety or human rights in the country of refuge analogous to that considered under the refugee definition and rendering asylum untenable. Survivors of torture, persons with special medical needs, and women at particular risk may also be eligible for resettlement. See Chapter 4 of UNHCR’s Resettlement Handbook, July 1997 (revised in July 2002).

⁸³ For Human Rights Watch’s critique of UNHCR’s 1997 Policy on Refugee in Urban Areas, see Human Rights Watch, Annex C, “UNHCR’s Posting on the Prima Facie Policy” in Hidden in Plain View: Refugees Living Without Protection in Nairobi and Kampala (New York: Human Rights Watch, November 2002).

⁸⁴ See footnote 82, above.

<<previous | index

February 2004