Thailand’s National Screening Mechanism: Key Issues

[Waritsara Rungthong is Project Manager of the Refugee Rights Litigation Project in Bangkok, Thailand. Caroline Stover is Asia Programme Officer at ARTICLE 19 and a legal advisor to the Refugee Rights Litigation Project.]

On 24 December 2019, the Royal Thai Government approved a regulation with the aim to establish a national screening mechanism  to manage “aliens” who cannot return to their country of domicile.  With the regulation adopted as follow-up to a pledge from the Royal Thai Government at the Obama Summit in 2016, the NSM is of interest to those following refugee law in Southeast Asia.

Thailand is not a party to the Convention Relating to the Status of Refugees (“1951 Refugee Convention”), raising many questions as to what the new regulation is meant to achieve and how it will impact refugees. The regulation requires creation of a Committee that is chaired by the Commissioner-General of the Royal Thai Police and staffed by various ministries, with up to four spots reserved for “experts,” which could include academics or members of civil society, among others (the “Committee”). The main duties of the committee include determining the criteria for eligibility, conducting screening, cooperating and coordinating with foreign governments and international organizations, as well as reporting requirements and other duties as necessary.

Is the regulation a welcome step towards greater rights for refugees in Thailand, or a move that will ultimately water down protection for those in need of international protection? Our analysis of the regulation, without being exhaustive, identifies a few key issues in the regulation, and assesses them against international law. The analysis ultimately concludes that the regulation currently raises more questions than answers on refugee protection.

Who qualifies as a protected person?

An obvious first question is who is entitled to protection under the regulation. The regulation conspicuously avoids use of the term “refugee”, instead defining a “protected person” as someone who is unable or unwilling to return to their country of domicile due to a reasonable cause for persecution, “as determined by the Committee.”  This qualification leaves the question of protection wide open, with the Committee free to decide both the eligibility requirements for protected person status and who meets those requirements.

While refugee protection in Southeast Asia has been criticized for the relatively low number of countries that have ratified the 1951 Convention as well as the lack of a regional convention on refugees, states in the region that have attempted to enact some form of refugee protection have either adopted the Convention itself (Cambodia, the Philippines), or have adhered closely to the Convention definition of a refugee (Indonesia). For example, Indonesia’s Presidential Regulation of 2016 defines a refugee as “a foreigner who resides within the territory of the Republic of Indonesia due to a well-founded fear of persecution due to race, ethnicity, religion, nationality, membership of a particular social group, and different political opinions, and does not wish to avail him/herself of protection from their country of origin and/or has been granted the status of asylum-seeker or refugee by the United Nations through the United Nations High Commissioner for Refugees.” In light of regional practice, Thailand’s attempt to define a “refugee” appears thin.

The non-definition of “protected person” employed by Thailand’s regulation could be worrying in light of the precarious situation in which certain refugees have recently found themselves in Thailand. Refugees, particularly those from countries in the region including Cambodia, Vietnam, and China, have feared for their safety while in Thailand after recent abductions and assaults by agents of their country of origin operating in Thailand. There have been allegations of Thai cooperation, or at least acquiescence, in these abuses. In this context, the regulation raises questions as to whether a Committee that is staffed by members from the National Intelligence Agency, National Security Council, and Special Branch Bureau, among others, will protect refugee rights over other interests, including political ones, on a nondiscriminatory basis.

The Royal Thai Government has also at times prevented the registration of certain ethnicities or nationalities for protection in Thailand, a worrying precedent now that it’s poised to take over responsibility for identifying those in need. Indeed, the drafting history of the regulation envisages that those that the Royal Thai Government deems has “special security issues” and may seriously impact “international relationships” including “people fleeing fighting from Myanmar, Rohingya, Uighur, and North Koreans,” could be excluded.

While it is possible that the Committee could adopt a more expansive definition than that found in the 1951 Refugee Convention – or those found in the African Convention or Cartagena Declaration – previous experience cautions against any such assumption. The closest parallel to the screening mechanism envisaged by the regulation is arguably Thailand’s Provincial Admission Boards, which have been intermittently used to assess whether refugees from Myanmar are permitted to enter refugee camps along the Thai-Myanmar border. The Boards have been criticized for at times tightening admissions requirements and rejecting vast numbers of applicants and entire ethnic groups, notably the Shan, have been excluded from access.

Moreover, countries that have put forward as models of refugee protection in the Asia region, including Hong Kong, have questionable records in relation to refugee protection given their refugee recognition rate of less than one percent. This raises concerns that when states take over responsibility for status determination from UNHCR, they may ultimately recognize a smaller number of individuals as in need of protection than should be under international law.  

What rights attach to “protected person status”?

Similarly, the regulation provides minimal insight into the rights a “protected person” can expect to receive.  Those who receive “protected person status” should be allowed to stay in Thailand on either a “special” or “temporary” basis. However, the regulation seems to envisage that stay in Thailand will remain temporary, failing to provide any pathway to permanent residency or citizenship in Thailand.

A recognized legal status will open up greater access to rights for refugees which are currently denied by law or which refugees fear to access because of doing so would bring them to the attention of authorities.  The regulation provides that children should receive education which is a welcome addition to gains made by the Royal Thai government last year in relation to immigration detention of children (an inter-ministerial memorandum of understanding signed in 2019 has the aim to release all children from detention). The rights adults receive upon a grant of “protected person status” are less clear and involve interpretation of other Thai laws, including the Foreigners’ Working Management Decree. While the regulation does not explicitly grant a right to work to protected persons, in theory, those who benefit from protection and receive permission to stay in the Kingdom of Thailand, would be able to apply for a work permit.  The regulation also points to health services for those granted “protected person status”.

The regulation further fails to rule out detention. Those seeking protected person status may be permitted to stay in a location as determined by immigration authorities, but this seems hardly different from Thailand’s current system of bail and detention, which is granted on a discretionary basis and has often been denied.

Protection against non-refoulement?

Those who seek protection are entitled to a deferral of return and those who are granted “protected person status” are protected from return under article 25(1) of the regulation. Yet again, without knowing how “protected person status” is determined, it is not possible to assess whether this will fulfill Thailand’s non-refoulement obligations as defined in the 1951 Refugee Convention, and its formulations in the ICCPR and CAT, each of which Thailand has ratified.  There are further questions as to how a carve-out for “national security” in both articles 15 and 25 will affect determination of this protection.  While national security considerations can enter into determinations relating to the principle of non-refoulement relating to refugee claims, substantive and procedural protections should accompany the determination given the magnitude of the rights at stake, with an appreciation for the difference between non-refoulement protections relating to persecution and torture. A glaring problem in this regard is the omission of a right to appeal either internally to the Committee or externally to a court of law on the merits of the claim.

What’s next?

The regulation is required to be implemented within the next 180 days. Once a Committee is convened, it is conceivable that some of the questions listed above will be answered. Yet the fact that so many important questions have been left to the discretion of a Committee, rather than codified by the regulation, is cause for concern. Observers may reasonably query what the regulation actually does to advance refugee protection at this stage.

The current lack of clarity around the extent to which Thailand’s NSM complies with international law raises questions with other stakeholders in the international refugee protection system. The UNHCR is likely evaluating its role in a country where new efforts for “protection” remain ill-defined, and the UNHCR still conducts refugee status determination. In welcoming the regulation, UNHCR noted that “it is hoped that the screening mechanism will regularize the stay of persons in need of international protection in Thailand and lend predictability to the asylum space,” and that it is important that the regulation be “implemented in line with international standards and general asylum principles.” This involves questions of eligibility, due process, and the substantive rights which accompany “protected person status.”

States typically engaged in refugee resettlement are similarly likely to need elaboration. While the mechanism offers some protection, it makes that protection temporary and subject to revocation. The regulation clearly envisages continued “coordination” with foreign governments without providing further detail.

Most importantly, refugees themselves will have many questions about the regulation and how it will impact their own lives. Certain procedural questions – such as what impact refugee status recognized by UNHCR will have vis-à-vis their claim for protection with the Royal Thai Government – are immediately pressing.

With increased attention on “complementary pathways” during the drafting of the Global Compact on Refugees, attempts to create new legal pathways for refugees are viewed with heightened anticipation. However, recognizing the screening mechanism as a refugee screening mechanism would be premature. There is no current indication that the regulation conforms to the robust definition of a “refugee” that has been developed and implemented for decades by states around the globe, and the concomitant rights. Now that the regulation has been approved, stakeholders should take this opportunity to advocate for issues of uncertainty to be resolved in favor of those in need of international protection.