DECRIMINALISATION OF UNDOCUMENTED STATUS OF MIGRANT WORKERS

By:

Glorene A Das

Affiliations:

TENAGANITA

Policy Code:

2f3 Refugees and undocumented

Problem Statement:

PROBLEM STATEMENT: Migrant workers who are undocumented for various reasons are
criminalized, imprisoned, deported and deprived of their right to seek redress against labor
violations, especially unpaid wages. Migrant workers often become undocumented when they escape from exploitative working conditions or because of weaknesses in the migrant labor management system such as employers who don’t renew work permits, unethical practices by agents, corruption, collusion and nepotism among employers and enforcement officials that facilitate illegal migrant labor recruitment and placement. The enforcement agencies do not take into account these reasons for undocumented status, but instead blame and victimize the undocumented migrant worker.

Value(s) and Belief(s):

No human being is illegal; while a person’s immigration may be unauthorized, the term “illegal immigrant” is dehumanizing. Being an undocumented migrant is not a criminal offence, rather it must be treated as an administrative offence. People do not lose
their human rights because of their undocumented immigration status.

Proposal of Solution:

RECOMMENDATION
1. Amend the Immigration Act to decriminalize undocumented immigration status, provide
for only administrative remedies, and remove detention, imprisonment, and corporal
punishment for being undocumented.
2. Adopt a human rights perspective in the enforcement of the Immigration Act against
undocumented. Take into account actions and negligence of other parties which cause
undocumented status. Do not further victimize the undocumented migrants.
3. If detention is unavoidable for immigration or passport offences, bring the person before
a magistrate within 24 hours. There must be alternatives to detention referring to
Suhakam’s recommendations and a mechanism to protect children, the elderly, pregnant
women and others with special needs do not get detained.
4. Remove the ouster clause in section 59 of the Immigration Act ‘Exclusion of right to be
heard’ and section 59A ‘Exclusion of judicial review,’ in order to permit detainees to be
heard and challenge the grounds for their detention and removal.
5. Allow undocumented migrant workers to seek redress through the Labour Department
for labour rights violations under the Employment Act.
6. Facilitate redress by providing undocumented migrants pursuing their case in the Labour
Department or any court of law, free Special Passes to stay, as well as permission to
work. Access to Yaysan Bantuan Guaman Kebangsaan / legal aid for migrants, so they
have access to legal aid, in their levy money can be used for legal assistance.
7. Create a Permanent platform for meaningful and institutionalized collaboration between
state and civil society organizations to facilitate redress for undocumented migrant
workers.
8. Provide undocumented migrant workers affordable access to the equal, affordable and
accessible health care as available to Malaysians. It is crucial to remove MOH Circular
10 and ensure a firewall between health services and immigration.
9. Enforce stern punishments with blacklisting against errant agents, employers and
government officers who cause migrant workers to become undocumented by acts of
commission, omission or dereliction of duties

Additional Information:

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