Discriminatory law and practice against women in Malaysian binational marriages

By:

Bina Ramanand

Affiliations:

Association of Family Support and Welfare Selangor and KL (Family Frontiers)

Policy Code:

2c Women

Problem Statement:

Women in binational marriages are faced with uncertainty and vulnerability due to citizenship laws and immigration policies.

1. Malaysian women are faced with unequal rights to confer citizenship to their non-citizen children and non-citizen spouses. Article 14(1)(b) read with Section 1(b) of Part II of the Second Schedule only allows Malaysian fathers to confer citizenship on their children born overseas by operation of law. This limits Malaysian women married to non-citizens to citizenship by registration—Article 15(2), a discretionary process fraught with delays, rejections and no guarantee of approval. Malaysian women are also unable to confer citizenship by registration on their non-citizen spouses on an equal basis as men under Article 15(1).
2. Non-citizen wives of Malaysians are also placed in vulnerable situations when they are made to wholly depend on their Malaysian spouse for their legal and economic status. They face difficulties in remaining in the country and/or accessing justice in cases of separation, divorce and widowhood.

Value(s) and Belief(s):

In line with CEDAW Article 9(2) and other relevant Articles, and the recommendations received by Malaysia in its 2018 review and resulting concluding observations, laws and policies should be gender-sensitive and equal such that there are safeguards for women in Malaysian binational marriages, including:
1. Malaysian women to be granted equal rights as Malaysian men to confer citizenship on their children and spouse.
2. Immigration policies to be reviewed and reformed to ensure women in binational marriages are not placed in legal and economic dependence.

Proposal of Solution:

Review citizenship laws, and immigration policies and practices, specifically:
1. Amend Article 14(1)(b) of the Federal Constitution (in accordance with Article 8(2)) to ensure Malaysian mothers can confer their citizenship by operation of law on an equal basis as Malaysian fathers on their children born overseas.
2. Amend Article 15(1) of the Federal Constitution (in accordance with Article 8(2)) to ensure that non-citizen spouses of Malaysian women are entitled to citizenship by registration similar to non-citizen spouses of Malaysian men.
3. Withdraw reservations to Article 9(2) of the Convention on the Elimination of All Forms of Discrimination Against Women.
4. Remove the statement of prohibition of employment on the Long-Term Social Visit Pass and the requirement to request prior approval to work.
5. Allow non-citizen spouses to renew their visa without the presence of their spouse.
6. Allow separated, divorced and widowed spouses to access permanent residence when they have Malaysian children, and allow them to renew their legal status without the presence of the Malaysian spouse.

Additional Information:

On the inability for Malaysian women to confer citizenship on their spouses:
Their spouses may apply for citizenship by naturalization on the same terms as other foreigners per Article 19, which is granted at the discretion of the Malaysian Government.
For non-citizen children and non-citizen spouses of Malaysians awaiting permanent residence or citizenship, the tedious anxiety-ridden process of repetitively applying for a visa and the mandatory presence of the Malaysian spouse is the only option left to remain in the country with their families. Therefore, the following is recommended to ease the adversity faced by binational families:
1) Grant automatic permanent residence status to all children born abroad to a Malaysian parent regardless of gender or location of birth.
2) Grant permanent residence and/or citizenship upon application to step-children of Malaysians, who are the biological children (below 18 years) of a non-citizen spouse, when the non-citizen spouse acquires permanent residency or citizenship, enabling the parent and child to have the same legal status in the country.
3) Develop a clear standard operating procedure that is made available on the Department of Immigration and National Registration Department’s websites to enhance transparency
and avoid disinformation in the processing of citizenship, permanent residence and visa applications.
a) Include a reasonable timeframe for a decision to be made and clear procedures to appeal a decision.
b) Simplify the Long Term Social Visit Pass process and provide visas with the duration of 5 years to non-citizen spouses and non-citizen children that fulfill stipulated criteria, without discrimination on the basis of nationality, ethnicity, gender, number of children or income.
c) Allow for automatic conversion to Permanent Residence with clear eligibility criteria for non-citizen spouses and non-citizen children without discrimnation on the basis of nationality, ethnicity, gender.
d) Provide reason(s) for rejection for all unsuccessful applications for citizenship, Permanent Residence status, Residence Pass and visas.
e) Allow visa applications for children to be submitted without the presence of the non-citizen parent to protect and ensure the safety of women experiencing domestic violence.
4) Allocate resources necessary to process the backlog of applications within a reasonable time.
5) Allow the submission of citizenship applications at Malaysian Missions Overseas, including for those applying for their children over the age of one year old. This will be beneficial in cases of emergency such as the current pandemic when movement is restricted.

Translation

Isu dan Polisi Semasa:

Nilai-nilai dan Kepercayaan:

Penyelesaian:

Informasi Tambahan:

On the inability for Malaysian women to confer citizenship on their spouses:
Their spouses may apply for citizenship by naturalization on the same terms as other foreigners per Article 19, which is granted at the discretion of the Malaysian Government.
For non-citizen children and non-citizen spouses of Malaysians awaiting permanent residence or citizenship, the tedious anxiety-ridden process of repetitively applying for a visa and the mandatory presence of the Malaysian spouse is the only option left to remain in the country with their families. Therefore, the following is recommended to ease the adversity faced by binational families:
1) Grant automatic permanent residence status to all children born abroad to a Malaysian parent regardless of gender or location of birth.
2) Grant permanent residence and/or citizenship upon application to step-children of Malaysians, who are the biological children (below 18 years) of a non-citizen spouse, when the non-citizen spouse acquires permanent residency or citizenship, enabling the parent and child to have the same legal status in the country.
3) Develop a clear standard operating procedure that is made available on the Department of Immigration and National Registration Department’s websites to enhance transparency
and avoid disinformation in the processing of citizenship, permanent residence and visa applications.
a) Include a reasonable timeframe for a decision to be made and clear procedures to appeal a decision.
b) Simplify the Long Term Social Visit Pass process and provide visas with the duration of 5 years to non-citizen spouses and non-citizen children that fulfill stipulated criteria, without discrimination on the basis of nationality, ethnicity, gender, number of children or income.
c) Allow for automatic conversion to Permanent Residence with clear eligibility criteria for non-citizen spouses and non-citizen children without discrimnation on the basis of nationality, ethnicity, gender.
d) Provide reason(s) for rejection for all unsuccessful applications for citizenship, Permanent Residence status, Residence Pass and visas.
e) Allow visa applications for children to be submitted without the presence of the non-citizen parent to protect and ensure the safety of women experiencing domestic violence.
4) Allocate resources necessary to process the backlog of applications within a reasonable time.
5) Allow the submission of citizenship applications at Malaysian Missions Overseas, including for those applying for their children over the age of one year old. This will be beneficial in cases of emergency such as the current pandemic when movement is restricted.