One of the most distressing issues today is the predicament of children who end up detained in immigration centres, which often leads to psychological harm. Regrettably, immigration laws in many countries are interpreted as criminal law which gives rise to the detention of those who fail to abide by them, whereas preferably, such laws should be an administrative framework for border management without criminal sanctions.
Thailand is no exception to this situation. A Memorandum of Understanding (MoU) is currently being prepared between relevant authorities to deal with this problem in a more child-sensitive manner. At stake are four key groups of children, some of whom are with their parents while others are unaccompanied minors.
The first group of children are victims of trafficking. On the one hand, the national law and policy for human trafficking state that these victims should be transferred to social welfare centres and not be detained. However, there might be a period of time in which their status has not been confirmed (not identified as victims of trafficking) and therefore they are left in a state of "limbo", leading to temporary detention.
The second group are children of the wide variety of urban asylum-seekers or refugees, ranging from people from Africa to the Middle East, South Asia and Southeast Asia. Many members of this group are persons of concern to the office of the United Nations High Commissioner for Refugees (UNHCR) and are waiting for durable solutions.
The third group are children of the 100,000 people displaced from Myanmar who are living in 10 border camps and who have been here for three decades. This group is housed in encampments rather than in immigration detention. However, if they venture outside the camps, they might be prosecuted for illegal immigration and land up in detention.
The fourth group concerns children of migrant workers or children who accompany migrant worker families, particularly those who are undocumented.
Internationally, the UN Convention on Rights of the Child (CRC), to which Thailand is a member, offers guidance on this issue. In regard to age, a child is understood to be any person under 18 years of age. There are four key principles pertaining to the rights of all children: their right to life, survival and development; non-discrimination; the best interests of the child; and respect for the child's views. Article 37(b) of the Convention lays down the rule that the detention of children must only be done as a matter of last resort and for the shortest possible time.
In reality, given that many options are available to deal with children in a non-custodial manner, it is axiomatic that particularly in immigration cases, the children should not be detained at all. This year, the world community will converge on two global commitments, namely the Global Compact on Refugees and the Global Compact on Migration, which will advocate for the non-detention of children.
There are many other factors to consider a more humane orientation to immigration law, policy and practice. First, the basic rationale of immigration law is that those who endeavour to cross borders are protected by their country of origin. However, this rationale is not legitimate when border-crossers are fleeing persecution or war in the country of origin. This calls for international protection and adherence to the principle of no push-back ("non-refoulement") to the country of origin. This is particularly interwoven with the plight of asylum seekers and refugees today.
Thailand's draft law against torture and enforced disappearances takes an approach based on international protection by reaffirming the non-refoulement principle under the Convention against Torture to which Thailand is a party. There is also now an initiative to set up a national screening process for people seeking asylum from all regions, despite the fact that Thailand is not yet a party to the International Refugee Convention. Under the new procedure, those who pass the test will be allowed to stay in Thailand temporarily subject to durable solutions.
Secondly, the current national law in Thailand, the Immigration Act 1979, has a provision (Section 17) which confers discretion on the relevant minister not to detain people. Thus, even pending a MoU in regard to non-detention of children, the concerned minister can already take measures to exempt children (and others) from detention, circumventing a criminal-law based approach.
Thirdly, inter-agency cooperation to transfer children from immigration centres to welfare centres and community-based facilities is important. This calls for timely cross-referral from the Ministry of Interior (which oversees the immigration department) to the Ministry of Social Development and Human Security. Strong networking is needed with civil society, particularly non-governmental organisations with expertise on children, to help shelter the children in a non-custodial setting.
Fourthly, what is to be done when children are with their parents and one or more of the parents are in immigration detention? Currently, young children (particularly under 15 years of age) are transferred with their mothers to welfare shelters, while the older children (particularly males) tend to be kept with the fathers in immigration detention. From the angle of the child's best interests, they should all remain together and should be sheltered in welfare shelters rather than kept in detention.
Finally, it is the country's child protection law -- the Child Protection Act 2003 -- rather than the immigration law which should prevail and be applied to children to confer maximum protection, including immigrant children. It is also imperative to have outside monitoring of detention centres so as to ensure transparency. Current access by the country's National Human Rights Commission is essential and should be strengthened. This should be complemented by strong International back-ups, such as through the UNHCR, the International Organisation for Migration, the UN Children's Fund, and the International Labour Organisation.
The universal scorecard of all child rights must thus be based on their effective implementation.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He was formerly a UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights. This article is an excerpt from his keynote address at the recent conference on Children in Detention, Bangkok.