2g4: Refugees & Asylum Seekers

Preamble

Malaysia has no legal or administrative framework for the recognition and

protection of refugees, and has yet to ratify both the 1951 Convention Relating

to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating

to the Status of Refugees. Without such a framework, refugees are denied legal

protection and are treated as “illegal immigrants'', subjected to arbitrary arrest and

detention, and various rights violations. Without access to legal status, refugees

cannot access safety or longer-term stability. Many live in poverty and are denied

basic rights such as access to justice, healthcare, education and work. Refugee

women and children face a heightened risk of violence and exploitation. The

impact of living in an unsafe discriminatory environment without opportunity

indefinitely is profound.

Refugees have fled life-threatening violence and persecution in their home

countries to seek safety from harm. Regardless of their mode of arrival, they

should be afforded conducive conditions of protection as a basic human right to

seek asylum from persecution. Malaysia has international human rights

obligations towards refugees which should be incorporated into the domestic

legal framework to ensure that they are afforded protection and that their rights

are upheld. Besides this, refugees and asylum seekers should be given

opportunities to be self-sufficient and enjoy a dignified standard of living.

Ensuring equitable access to healthcare, improving labour and social protections,

and implementing a formal legal framework will enable refugees to make a living,

contribute to the economy legitimately and prevent them from being abused and

exploited.

I: Immigration Detention

Refugees and asylum seekers registered by United Nations High Commissioner

for Refugees (UNHCR) hold a form of de facto status that allows some degree of

protection. Nonetheless, arrests and detention still occur during the process of

document verification, or when the refugee is prosecuted for working without a

permit and transferred to an immigration detention centre after serving time in

prison for working illegally. As refugees cannot be deported, the timeframe for

immigration detention is indefinite. Until August 2019, the Government had

allowed UNHCR access to detention centres to conduct registration and

assessment. Although refugees could still spend months in detention waiting to

be processed, this move by the authorities at least helped shorten the timeframe

by allowing for screening and release to take place.

1. Immediately grant UNHCR access into immigration detention centres

to conduct screening and verification of detained refugees and asylum

seekers.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-1)

2. Improve conditions in immigration detention centres.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-1)

The Ministry of Home Affairs (MOHA), MWFCD, MOH and the Immigration

Department must work together to improve conditions in immigration detention

centres, including, but not limited to, improving the quality of food and water,

latrine facilities, as well as provision of hygiene items for all detainees, and

prompt and adequate access to healthcare.

3. Develop a formal policy in partnership with UNHCR Malaysia and civil

society organisations to put a stop to immigration detention of refugees

and asylum seekers.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-1)

4. Develop screening and referral mechanisms for refugees and asylum

seekers.

Refer them to more appropriate reception facilities instead of immigration

detention.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-1)

5. Develop a formal policy to end immigration detention of all children.

This should be done by the MOHA and MWFCD. As a first step, immediately

implement the pilot programme on alternatives to detention in collaboration with

civil society organisations, and release unaccompanied children into alternative

care arrangements that are not lock-down shelters.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-1)

6. Regularly publish data on the numbers of refugees, asylum seekers and

children in immigration detention.

The data should be disaggregated by age, group, gender, nationality, and those

registered with UNHCR.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-1)

II: Comprehensive Legal & Policy Framework for Refugees

The lack of a consistent domestic policy on refugees has enabled the

Government to violate international human rights obligations including the

principle of non-refoulement.

7. Develop a comprehensive legal and policy framework for the

management and protection of all refugees and asylum seekers in

Malaysia.

This includes the right to seek asylum, legal status, and the right to stay. Also

enact or amend relevant national laws to incorporate these provisions.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-2; ROL Cluster, CSO Platform for Reform, Proposal 2G4-3)

8. Create an inter-agency committee on governance and protection of

refugees.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-2)

This committee, consisting of both government and key civil society

representatives, should make recommendations related to legal and policy reform

on refugee protection. They should be accountable and report directly to the

Cabinet, who will have the mandate and power to approve any

recommendations. Multi-stakeholder technical working groups should then be

constituted to address the mechanics of implementation. This requires increased

cooperation and meaningful engagement with civil society organisations.

9. Exempt all UNHCR-registered refugees and asylum seekers from

prosecution.

Refugees who are already registered with UNHCR should be released from

detention and granted temporary legal status. Those who are unregistered and

currently in detention should be given the right to seek asylum with the

UNHCR.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-2)

10. Ensure accessibility to basic rights.

In particular, the right to education and healthcare, right to work, livelihood,

housing and access to justice.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-2)

III: Access to Healthcare

Because they lack legal status, refugees and asylum seekers face arrest and

detention for immigration offences when accessing healthcare. Although those

documented are given a 50% discount off foreign citizen rates, this rate was

doubled in 2016, essentially rendering healthcare services inaccessible for them.

For undocumented women, besides the financial cost burden and fear of arrest

and detention, they face additional barriers accessing pre- and post-natal care,

particularly in places of detention. The same factors of cost and security affect

children as well, who face challenges in accessing immunisation; they also miss

primary age immunisation, as they do not have access to national schools.

11. Repeal the MOH Circular No 10/2001, and any other subsequent

circulars that contain orders for healthcare providers to identify and report

undocumented patients seeking treatment to law enforcement authorities.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-4; ROL

Cluster, CSO for Platform Reform, Proposal 2G4-3)

12. Introduce a firewall between healthcare providers and immigration and

security enforcement.

Take necessary steps to ensure that these firewalls are respected.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-4)

13. Initiate a sustainable and comprehensive health-financing scheme

within the public health system for refugees and asylum-seekers.

The aim is to reduce the cost barrier, promote self-reliance and improve universal

health coverage.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-4)

14. Implement a public health response that is inclusive to all, regardless

of legal status.

Particularly within the COVID-19 response, ensure safe access to vaccinations,

testing and treatment for refugees and asylum seekers without reprisal.

15. Increase healthcare providers’ capacity to provide translation and

interpretation services, and health education to increase health literacy.

In collaboration with civil society and refugee-led organisations, enhance

healthcare providers’ understanding of the vulnerabilities, challenges, and needs

of refugees and asylum seekers.

16. Strengthen implementation of health policies and guidelines in all

places of detention.

Ensure that persons detained have adequate and prompt access to medical care at

the point of need.

17. Amend the Fees (Medical) Order 1982 to ensure that non-Malaysian

children have access to free vaccinations.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-4)

IV: Labour Protection

In the absence of a formal legal framework, refugees and asylum seekers are

denied formal rights to work and to earn a dignified livelihood in Malaysia. To

survive, refugees often find themselves in extreme poverty, working under

exploitative conditions and resorting to informal work that is dangerous and

demeaning. Refugees and asylum seekers do not receive regular livelihood aid or

support for their basic needs from the Government or UNHCR. Many are thus

forced to take on informal work, despite the risks and fear of being arrested,

detained and subject to police harassment. Refugees are unable to access

employment protections and do not have proper avenues for seeking redress

from unscrupulous employers.

18. Enforce labour protections for refugees and asylum-seeking workers, in

line with the Employment Act 1955 and Industrial Relations Act (IRA)

1967.

Ensure that they are able to seek redress for labour violations, with clear policies,

guidelines and training across departments on filing and handling of labour

dispute cases.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-5)

19. Enact or amend relevant laws and policies that will provide refugees

and asylum seekers a right to stay and reasonable access to work

opportunities.

This includes access to formal labour across all industries and geographical

locations, access to social security benefits and insurance.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-5;

ROL Cluster, CSO for Platform Reform, Proposal 2G4-3)

20. Form a technical committee between government ministries, UNHCR

and civil society to institutionalise coordination of work rights.

A phased approach can be adopted, with members of the technical committee

providing feedback throughout the design, implementation and review phases.

The technical committee should also consult widely with representatives from the

refugee communities as well as potential employers.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-5)

21. Ensure a comprehensive recruitment and monitoring system.

This must be put in place under the Ministry of Human Resources to protect

refugees and asylum seekers’ labour rights, and to ensure that these people are

not exploited or trafficked.

(Tham Hui Ying, Asylum Access Malaysia, Proposal 2G4-5)