Ending Immigration Detention of Refugees and Asylum Seekers

Proposer:

Tham Hui Ying

Affiliations:

Asylum Access Malaysia

Policy Code:

2f3 Refugees and undocumented

Problem Statement / Issue:

Refugees, asylum seekers and non-Malaysian children are vulnerable to arrest, detention, whipping and/or deportation for violating immigration laws. Refugees and asylum seekers registered by UNHCR hold a form of de facto status that allows some degree of protection. However, arrest and detention still occur for document verification, or when prosecuted for working without a permit and transferred to immigration detention upon completion of sentence. As refugees cannot be deported, immigration detention is indefinite. Prior to August 2019, the Malaysian government allowed UNHCR access to detention centres to conduct registration and assessment. Although refugees could still spend months in detention waiting to be processed, this effort allowed for screening and release. However, since August 2019, UNHCR’s access to detention has been halted, resulting in refugees languishing in immigration detention. Harsh conditions in detention have been documented by SUHAKAM. As of Nov 2020 there are 756 children in detention, of whom over 50% are unaccompanied.

Value(s) and Belief(s):

Article 14 of the UDHR grants the right to seek asylum from persecution. The principle of non-refoulement under international law provides that refugees who can face harm and persecution cannot be deported. The UNCRC also provides that children should never be detained for immigration purposes and alternatives should be explored.

Proposal of Solution and Call to Action:

1. In partnership with UNHCR Malaysia and civil society organizations, develop a formal policy to end immigration detention of refugees and asylum seekers.
2. As part of implementing this formal policy, develop screening and referral mechanisms for refugees and asylum seekers to seek asylum and be referred to more appropriate reception facilities instead of immigration detention.
3. Pending development of the formal policy, immediately grant UNHCR access into immigration detention centres to conduct screening and verification of currently detained refugees and asylum seekers.
4. MoHA and MWFCD to develop a formal policy to end immigration detention of all children. As a first step, immediately implement the ATD pilot program in collaboration with civil society and release unaccompanied children into alternative care arrangements that are not lock-down shelters.
5. Regularly publish data on the numbers of refugees, asylum seekers, and children in immigration detention, disaggregated by age, group, gender, nationality, and those registered with UNHCR.
6. MoH, MoHA, MWFCD, and the Immigration Department to work together to improve conditions in immigration detention, including but not limited to, improving the quality of food and water, provision of hygiene items for all detainees, improving latrine facilities, and prompt and adequate access to healthcare.

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