Overcoming statelessness in Thailand
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Overcoming statelessness in Thailand

The government and NGOs are taking steps to accelerate the legal status of stateless children. Here, volunteers give advice and help children prepare necessary documents. UNICEF/Patinya Panyayot
The government and NGOs are taking steps to accelerate the legal status of stateless children. Here, volunteers give advice and help children prepare necessary documents. UNICEF/Patinya Panyayot

There are about 500,000 stateless people in Thailand, of whom over 100,000 are children. Recently, various national agencies, supported by UNHCR and Unicef, hosted a national consultation on statelessness. It was a timely opportunity to identify preferred directions.

The long and winding road is due to a variety of factors. The laws and policies on birth registration, nationality, residency, immigration and related factors run into hundreds of pages (400 according to one compilation). They are compounded by piecemeal responses through cabinet resolutions and security concerns which split people into different categories according to how they are viewed for the purpose of acceptability.

More often than not, their fate is determined by "when" they entered the country, such as whether they entered just after World War II or during the Vietnam War of the 1960s. There then follows the issue of whether they were born in Thailand and whether the parents were Thais or not, aggravated by situations when the parents might be seen as illegal immigrants.

Moreover, there is the issue of "which" group is at stake, such as whether they are longstayers from the old Chinese groups entering in search of refuge as a consequence of the civil war in China in the late 1940s, the long-staying Vietnamese who entered in the late 1950s after the battle of Dien Bien Phu, or recent arrivals. Added to that is the question of whether they are from various ethnic groups already in Thailand who have fallen through various identity-related registration processes.

National responses can be divided up into six areas of concern. First, there is the issue of birth registration. To Thailand's credit, the birth registration law guarantees registration of all births in Thailand, irrespective of immigration status. Such registration concerns the child's validation as a person, an entity, and does not imply Thai nationality. There is a possible link between birth registration, school registration and related personal data registration and household registration.

However, in case of failure or tardiness to register, a fine is imposed. The UN Committee on the Rights of Child has advocated against the fine. There is also a need to synchronise well between data from the different places where children are born (such as inside or outside a hospital), so as to ensure that data is centralised at the Ministry of Interior.

Second, there is the question of nationality. Originally, Thai nationality law recognised three main types of acquisition of nationality: by blood ties, by birth in Thailand and by naturalisation. However, the second possibility was excluded by a later law, known as Decree (number) 337, in regard to children born in Thailand from parents classified as illegal immigrants and that decree had retroactive impact to withdraw the nationality already granted to children.

This injustice was rectified by a later amendment of the nationality law which restored Thai nationality to those who had been deprived of nationality due to that decree. The Thai Nationality Act 2008 also enabled persons born in Thailand before 1992 to apply for Thai nationality. In 2017, there was a ministerial decree to confer Thai nationality upon the long-stayers above and related ethnic groups if they were born in Thailand, but with various time stipulations on the presence of their parents in Thailand.

Third, there is the issue of residency. Permanent residency is already quite easily available to rich foreigners who wish to work in Thailand, subject to various conditions concerning resources and period of stay in Thailand. This classification is now more open to other groups, and another ministerial decree in 2021 opened the door to permanent residency status for persons who had migrated to Thailand a long time ago but who were not born here.

Fourth, there is the special exemption categorisation. This concerns especially the anomaly which ensued from the amended nationality law above which discarded Decree 337. The new law still imposed an exclusion clause prospectively for newborns; children born of illegal immigrant parents would be excluded from Thai nationality due to the immigration linked status.

This created another oddity, since logic dictated that the children born in Thailand, even with illegal immigrant parents, did not enter the country and should not be linked with the immigration law. This irregularity was later addressed in a 2017 ministerial decree which accorded to this group special exemption to stay in Thailand, thereby implied not classifying them as illegal immigrants.

Fifth, there is the issue of immigration-law related status. The Immigration Act dates from 1979 and empowers the Ministry of Interior to exempt potential illegal immigrants from classification as illegals and to stay on in Thailand. However, the Act fails to cater adequately to those who come to Thailand for refuge as humanitarian cases and the latter often have to depend on validation to stay in Thailand temporarily through Cabinet Resolutions.

Sixth, there is the residual group whose status is unclear and undetermined. This group covers, for example, those who are waiting to be classified as one of the five categories above. It can also cover those trying to find evidence to prove their identity or those who fall through the cracks of the various categories.

To streamline the above, a critical challenge is to at least ensure justice in the granting of Thai nationality to persons born in Thailand. It is best to revert back to the old nationality law which conferred Thai nationality automatically on children born in Thailand and delink it from the immigration status of the parents.

One option is to confer on them permanent residency status automatically rather than perpetuate the current unclear status of special exemption as seen in the fourth category above, as well as time-linked conditions and constraints in the various categories noted.

The Immigration Act should also be revamped to become the Immigration Assistance and Protection Act to integrate the provisions of the country's new anti-torture law to prevent push-backs ("refoulement") of persons trying to enter Thailand -- to areas of danger, and to ensure that persons who are not protected by the country of origin are assisted and protected in Thailand.

Vitit Muntarbhorn is a Professor Emeritus at Chulalongkorn University. He has helped the UN as UN Special Rapporteur, Independent Expert and member of UN Commissions of Inquiry on Human Rights.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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