#manifestorakyat2021
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)
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Index | First Name | Last Name | Organisation | Submission Date |
---|---|---|---|---|
1 | Chee Han | Lim | Agora Society | 17/10/2022 |
1 | Swee Lin | Loh | Individual | 28/09/2022 |
2 | Laura Sui San | Kho | Mental Health Association of Sarawak (MHAS) | 28/06/2022 |
1 | Laura Sui San | Kho | Mental Health Association of Sarawak (MHAS) | 28/06/2022 |
1 | Laura Sui San | Kho | Mental Health Association of Sarawak (MHAS) | 28/06/2022 |
1 | Laura Sui San | Kho | Mental Health Association of Sarawak (MHAS) | 28/06/2022 |
1 | Laura Sui San | Kho | Mental Health Association of Sarawak (MHAS) | 28/06/2022 |
1 | Mohd Asraf Sharafi | Mohd Azhar | Individual | 25/06/2022 |
1 | Chee Han | Lim | CSO Health Cluster / People's Health Forum | 14/06/2022 |