January 21 was a memorable day for human rights in Thailand. Dozens of ambassadors as well as UN bodies witnessed the government sign an agreement to end the detention of migrant and refugee children.
Deputy Prime Minister Prawit Wongsuwan and seven government agencies gathered at Parliament House in the morning to sign a document with a cumbersome but important title: the “Memorandum of Understanding on the Determination of Measures and Approaches Alternative to Detention of Children in Immigration Detention Centres”.
This moment was years in the making. It was the result of years of advocacy and cooperation between government officials and civil society organisations (CSOs).
The work to end child detention in Thailand received a notable boost in September 2016 when Prime Minister Prayut Chan-o-cha committed to end child detention at the Leaders’ Summit on Refugees at the United Nations in New York City. Soon after, on January 10, 2017, the Thai Cabinet launched Resolution 01/10, directing agencies to develop a mechanism to identify and recognise refugees. CSOs were quick to support this work by developing a draft regulation and engaging with relevant agencies on a framework to ensure protections for refugees.
At the global level, the Leaders’ Summit resulted in the “New York Declaration for Refugees and Migrants”, which set in motion the establishment of the Global Compact for Safe, Orderly and Regular Migration (GCM) and Global Compact on Refugees (GCR), two intergovernmental agreements that seek to protect people on the move. Among other protections, the 31-page GCM mentions the principle of the “best interest of the child”, the need for screening mechanisms for migrants, and the use of immigration detention only as a last resort.
The GCM is also a key milestone towards fulfilling the Sustainable Development Goals (SDG) by 2030. SDG Goal 16.6 targets ending abuse, exploitation, trafficking and all forms of violence against children.
Notably, in considering the terms of the GCM, the Thai government consulted members of the public and people working in the field of migration. Last December, only a few weeks after signing the MoU to end child immigration detention, Thailand joined more than 100 UN member states in adopting both the GCM and GCR.
Numerous CSOs in Thailand working with refugees and children worked hard to make the MoU a reality. There was intensive cooperation between civil society and government bodies, namely the Police Immigration Bureau and the Department of Children and Youth under the Ministry of Social Development and Human Security. This cooperation was a key to success.
In early 2018, Thai CSOs also engaged an initiative to assess Thailand’s efforts to end child detention using a scorecard developed by the International Detention Coalition to evaluate the existence and effectiveness of laws and practices within a country to prevent the immigration detention of children. As part of this initiative, Fortify Rights along with other CSOs organised consultations with relevant Thai authorities to discuss Thailand’s laws and practices, providing an opportunity to discuss these critical issues face to face.
The Scorecard focused on 21 countries, including Thailand, and was launched in August 2018 by the Global NextGen Index.
Apart from these activities, CSOs organised meetings and consultations with diverse stakeholders working with children and refugee communities. We facilitated training and workshops for affected communities and service providers, including legal awareness training and training on child-case management for direct service providers. We also engaged in private meetings with relevant government agencies and officials on potential steps to end child detention
The MoU to end child detention in Thailand is indeed a big leap forward, but it is only half the story. More steps are needed before we will see an end to child detention in Thailand.
The MoU acknowledges that children should only be detained as a measure of last resort and any detention period should be as brief as possible, and it prioritises the best interests of the child, affirming government responsibility to ensure children remain under their family’s care. It stipulates that children should only be transferred into privately run shelters or government custody as a measure of last resort.
However, the MoU fails to address family separation, and migrant mothers are still only granted release from immigration detention following a cash bail payment of Bt50,000 to reunite with children in holding shelters. The bail rate is exorbitant for most migrants and particularly for refugees, who are prohibited from working in Thailand. Furthermore, the bail provision does not extend to fathers of migrant and refugee children, undermining the rights of a child to family life as enshrined in international law and best-interest practices. Bail is further restricted to mothers with children who are also in immigration custody.
These struggles stem from the fact that Thailand still has no concrete domestic law to identify refugees and recognise their rights and responsibilities.
Thai authorities should now work to fulfil Cabinet Resolution 01/10 and also amend the Immigration Act 1979 together with stepping up to ratify the 1951 Refugee Convention and its 1967 Protocol so that refugees are better protected and not subject to arbitrary arrest and detention. No one should ever be detained because of their immigration status, and Thailand would do well to reflect this principle in its laws, policies and practices.
Puttanee Kangkun is a senior human rights specialist at Fortify Rights. Follow her on Twitter @KhunputPuttanee.