On 1 February, 131 (mainly Rohingya) refugees escaped from an immigration detention centre in the Malaysian state of Perak following reported riots in the facility, called the Bidor Temporary Immigration Depot. This is the second mass escape in two years from a Malaysian detention centre, which observers say underscores the inhumane conditions that immigration detainees […]
03 May 2022 – Malaysia
On 20 April 2022, 528 Rohingya refugees–including 97 women, 294 men, and 137 children–escaped from the Relau detention centre in Sungai Bakap. According to a new local news agency, immediately before the escape there had been a “riot” at the detention centre. Most of the detainees were quickly re-detained, though seven–including three children–died while trying […]
16 June 2021 – Malaysia
Since the onset of the pandemic, Malaysian authorities have argued that crack-downs on undocumented migrants and other non-nationals are necessary to stop the spread of COVID-19. A recent example is the 24 May-28 June 2021 nationwide lockdown–referred to in Malaysia as a Movement Control Order (MCO)–during which Home Ministry officials have carried out wide-scale raids […]
25 February 2021 – Malaysia
In the face of mounting international outrage, on 23 February Malaysian authorities proceeded with the deportation of 1,086 people to Myanmar, who included suspected refugees as well as many children (see the 18 February update below for additional details). The deportations took place as the COVID-19 pandemic has severely hurt the job prospects of migrants […]
18 February 2021 – Malaysia
Despite strong criticism from civil society organisations and the UN, Malaysian authorities are preparing to deport 1,200 people to Myanmar on 23 February even as the crisis in Myanmar spurred by the recent military coup there continues to deepen. Observers are particularly concerned that refugees and asylum seekers will be amongst those deported by Malaysia. […]
25 November 2020 – Malaysia
In stark contrast to the increasing efforts by many countries around the world to decrease or end child immigration detention, Malaysia continues to detain large numbers of children, despite the dangers presented by the spread of COVID-19. While UNICEF has called on governments to immediately release children to protect them during the pandemic, Malaysia reported […]
04 June 2020 – Malaysia
On 4 June, Malaysia recorded 277 COVID-19 cases—the highest daily figure recorded since the start of the outbreak. 270 of these cases involved foreigners detained at the Bukit Jalil Immigration Detention Depot, which has a reported capacity of 1,500 people. Previously, on 25 May, the country’s Director General for Health Noor Hisham Abdullah announced that […]
26 May 2020 – Malaysia
According to information submitted to the GDP by Kendra Rinas, the IOM’s Chief of Mission in Malaysia, all immigration detainees (believed by the IOM to number over 13,000 people) are now being tested for the virus, and on 26 May authorities ceased issuing new detention orders. These developments emerged following news of rapidly rising numbers […]
03 May 2020 – Malaysia
Refugees and undocumented migrant workers in Malaysia are being targeted as part of a purported anti-Covid-19 campaign, which has included mass arrests and raids across the country since the start of May. According to Al Jazeera, “There has been growing public anger in recent days over the presence of migrant foreigners, with some in Malaysia […]
16 April 2020 – Malaysia
In late February, some 16,000 people attended a religious gathering at a mosque on the outskirts of Kuala Lumpur. Among the attendees were large numbers of undocumented Rohingya refugees. This gathering proved to be a “hotspot” for Covid-19, with significant numbers of those in attendance developing symptoms. Seeking to stem the spread of the virus, […]
Last updated: July 2023
Immigration Detention in Malaysia:
Joint Submission to the Universal Periodic Review, 45th Session of the UPR Working Group (January/February 2024)
1. INTRODUCTION
This submission for the fourth cycle of the Universal Periodic Review (UPR) of Malaysia has been prepared by the Global Detention Project (GDP), a non-profit organisation based in Geneva that promotes the human rights of people who have been detained for reasons related to their non-citizen status; and the Asia Pacific Refugee Rights Network (APRRN), a network consisting of more than 240 civil society organisations and individuals from 28 countries committed to advancing the rights of refugees in the Asia Pacific region.
This submission focuses on human rights concerns with respect to migration-related detention in Malaysia.
2. CONTEXT
Malaysia’s immigration enforcement regime—including detention, forced removals, criminal prosecution, and corporal punishment—is one of the world’s more punitive, arbitrary, and harmful systems.
Unauthorised entry and stay in Malaysia are criminalised and migrants often serve time in prisons before being transferred to one of several “immigration depots” while awaiting deportation. There is no limit to the amount of time migrants can be held in administrative detention; there are reports of people remaining in detention for years, including refugees.[i]
Malaysia continues to detain children despite its stated commitment to work to end the detention of unaccompanied or separated children as well as the growing global consensus that immigration detention is inherently harmful to children and thus is in all cases a breach of the Convention on the Rights of the Child’s best interests principle, as the Committee on the Rights of Child underscores in its General Comment No. 23/No.4 (2017). As a signatory to the ASEAN Declaration on the Rights of the Child in the Context of Migration, Malaysia is obliged to implement non-custodial, community-based alternatives for children in immigration detention. Although Malaysia launched a pilot alternative to detention program for unaccompanied and separated children in 2022, the pilot project has stalled. A new initiative announced by the Minister of Home Affairs in February 2023 aims to shift all detained children into alternative care arrangements. However, to date no children have been released.
Despite its poor human rights record, Malaysia continues to be an important destination for migrants and asylum seekers from across Southeast and South Asia. UNHCR data indicates that in 2022, Malaysia hosted 134,554 refugees, 47,433 asylum seekers, and 115,169 stateless persons.[ii] The Migration Data Portal indicates that as of 2020, Malaysia had approximately 3.5 million international migrants, representing nearly 11 percent of the country’s total population.[iii]
Rohingya refugees fleeing genocide in Myanmar are amongst the more persecuted groups in Malaysia. Their extreme precarity is severely accentuated by their statelessness, which is a result of Myanmar’s stripping them of their nationality.[iv] Considered “illegal” or “prohibited” immigrants under Malaysia’s Immigration Act, they are detained upon arrival in the country and denied access to UNHCR or registration procedures.[v] Suffering extreme economic hardship and burgeoning xenophobic sentiment, Rohingya communities have been the target of large scale immigration raids, leading to a growing detainee population. Some observers estimate that the average length of detention for Rohingya is two years.[vi]
Among its more notorious immigration enforcement practices is its policy of caning non-citizens prosecuted for unauthorised presence in the country. A legacy of British colonial rule, caning was introduced in the Immigration Act in 2002 to deter unlawful migration. Denounced as a form of torture by Amnesty International[vii] and as “anachronistic and inconsistent with a compassionate society in a developed nation” by the Malaysian Bar Association,[viii] caning is applied to adult males between 18 and 50 years old and leaves permanent physical and mental scars. Several thousand foreign national prisoners may be caned each year, including nearly 6,000 in 2013.[ix] Rohingya refugees have also been subject to caning, although recent High Court rulings have spared some refugees from this punishment.[x]
Procedural standards are reportedly very poor. Immigration detainees are rarely informed of the reasons for detention in a language they understand and they have scant access to legal counsel. Some UNHCR refugee cardholders detained in immigration “depots” can be released subject to the government’s discretion but the UN refugee agency has since 2019 been blocked from visiting refugees in these detention centres.
Many non-citizens detained in Malaysia are victims of trafficking. The country has repeatedly been accused of failing to implement measures aimed at identifying trafficking victims, including during enforcement raids.[xi] Because there is no vulnerability screening process, trafficking victims must “self-identify” in order to access legal and social support. According to the U.S. State Department, “Because of inconsistent identification efforts, authorities continued to inappropriately penalize trafficking victims for immigration and ‘prostitution’ violations.”[xii]
The Malaysian Passport Act empowers immigration and police officers to “lawfully detain” persons unlawfully entering Malaysia on board vessels during the period that the vessel is within Malaysia or the territorial waters thereof. However, little or no information about the frequency of the application of this measure appears to be available.
Malaysia is not a signatory to the 1951 Convention Relating to the Status of Refugees and it has failed to adopt legislation recognising the legal status of asylum seekers and refugees, who are thus considered “illegal immigrants” under the Immigration Act 1959/1963.
Health care is limited or absent in detention centres, which faced severe health crises after the onset of the COVID-19 pandemic. With the onset of COVID-19, the government assured undocumented migrants that they would not be arrested if they came forward for testing for COVID-19. However, subsequent mass testing of migrants in certain “Enhanced Movement Control Order” (i.e. strict lockdown) areas resulted in mass arrests and immigration raids, which included asylum seekers pending registration by UNHCR and UNHCR cardholders whose registration had expired and could not be renewed due to lockdown. These people were detained in immigration detention centres, where clusters of COVID-19 later appeared, extending the public health emergency brought on by the pandemic.[xiii]
3. FACTS AND FIGURES
According to data provided by various official and non-governmental sources, which has been collected and maintained by the Global Detention Project,[xiv] Malaysia regularly has on average some 15,000 non-citizens—including children, victims of trafficking, and refugees—in detention on any given day. In May 2020, there were an estimated 13,000 immigration detainees; in April 2022, more than 17,000; and in July 2023, some 16,000.[xv]
Women and children comprise a significant portion of the immigration detainee population. According to the Malaysian Immigration Department, among the more than 17,000 people in immigration detention on 26 April 2022, there were 12,895 men, 3,211 women, and 1,528 children.[xvi] More recently, during a single day in May 2023, there were 11,068 people in immigration detention centres, including 8,427 men, 1,775 women, 542 boys, 427 girls.[xvii]
According to media reports some 68,000 people were placed in immigration detention in 2013, including mainly Burmese, Indonesians, and Bangladeshis.[xviii] This number increased to nearly 87,000 in 2016, and decreased to some 47,000 in 2017.[xix]
Hundreds of people have died in immigration detention in recent years. According to one report from 2022, between 2018 and February 2022, there were 208 deaths in immigration detention centres.[xx] A more recent study, published in May 2023, reports: “Between 2014 and mid-2022, 568 deaths were reported in immigration detention centres. In 2022 alone, 153 people, including seven children died. … The government has reported that over the time period of 2015 and mid-2022, Covid-19, tuberculosis, heart disease, kidney disease, pneumonia, and cancer were among the causes of death of people in immigration detention. No further information about the causes of deaths is publicly available.”[xxi]
4. DETENTION LAWS, REGULATIONS, AND CONDITIONS
Malaysia’s Immigration Act provides criminal penalties for anyone who irregularly enters the country, including a fine of up to RM 10,000, imprisonment for up to five years, and (if the individual is an adult male) up to six strokes of the cane.
Refugees and asylum seekers are subject to detention, despite the existence of policies that are intended to protect them from these measures. According to one recent report: “Refugees and people seeking asylum who are registered with UNHCR hold a form of de facto status in Malaysia that provides only precarious and ad hoc protection against arrest, detention, and refoulement. The Attorney General’s Circular and National Security Council Directive 23 (MKN 23) are two policies that inform this de facto status of UNHCR card holders. These policies are not publicly available, have not been codified, and are inconsistently applied.”[xxii] Moreover, as UNHCR registration can itself take years (the COVID-19 pandemic, for example, created a significant backlog of people awaiting registration or an RSD interview), refugees remain at risk of arrest and detention, and are often too afraid to go outside. In 2022, the Malaysian government announced that it intends to shut down UNHCR and take over refugee management in the country[xxiii]–a development that would exacerbate refugees’ vulnerability in the country.
Immigration laws do not protect children from detention. While the Immigration Regulations provide for accompanied children under the age of 12 to be detained with either of their parents, there is no formal age assessment in place. Instead, age is assessed by physical appearance. The definition of “child” also varies from centre to centre–some facility management consider children to be anyone under 18, while others consider them to be under 12.[xxiv]
Non-nationals can be detained indefinitely, as Malaysian legislation does not set a detention time limit. Section 34(1) of the Immigration Act states that persons can be detained “for such a period as may be necessary” for their removal.
There are few administrative or judicial channels that immigration detainees can pursue to challenge their detention. Section 59 of the Immigration Act restricts an individuals’ ability to be heard by the Minister or Director General regarding any matter under the Immigration Act, and 59A restricts judicial review of any acts or decisions except those relating to compliance with a procedural requirement.
Conditions inside the country’s detention facilities are known to be inhumane. Detainees are exposed to severe overcrowding, inadequate nutrition, limited health care, and poor sanitation and hygiene levels. There are numerous reports of detainees being physically ill-treated, as well as experiencing verbal and psychological abuse.[xxv] Recreational activities are not provided, and detainees are instead forced to sit in their cells all day long–with the exception of a short 30 minute break for exercise. Similarly, no play activities are provided for children.[xxvi] Poor conditions in detention facilities were highlighted in April 2022, when hundreds of detainees escaped the Sungai Bakap temporary detention centre reportedly in protest of conditions, during which seven people lost their lives.[xxvii]
The impacts of these poor conditions are wide and varied. A 2022 study by a coalition of civil society groups found detainees commonly suffered from skin diseases, diarrhoea, stomach ulcers, and fever, and that women–especially breastfeeding women–were commonly malnourished.[xxviii] Numerous deaths have also been reported inside detention centres. Between 2014 and mid-2022, 568 people died. According to the government, among the main causes of death were COVID-19, tuberculosis, heart disease, kidney disease, pneumonia, and cancer. [xxix]
5. TRANSPARENCY AND OVERSIGHT
Malaysia does not publicly release disaggregated data concerning migration-related detention. Detention statistics that are available often emerge through parliamentary procedures. However, while some available data is disaggregated by age, gender, nationality, and ethnicity, there is no data concerning “medical vulnerabilities, disabilities, sexual orientation, legal status, employment status, literacy, or socio-economic context.”[xxx] A recent report about the detention of refugees in Malaysia noted that Malaysian government officials refused to be interviewed for their study. “Despite several attempts to engage with officials – in particular, from the Immigration Department, Ministry of Home Affairs, Ministry of Women, Family and Community Development, the Ministry of Foreign Affairs, and the National Security Council – all either failed to respond or denied the interview request.”[xxxi]
Malaysia’s detention practices also occur with little or no external monitoring, which enables abuses and prevents accountability. Civil society organisations are prevented from visiting people in immigration detention, and in 2019, Malaysia suspended UNHCR’s regular access to sites of detention.
Critics of the country’s detention practices, as well as whistleblowers, have faced reprisals including arrest and, in the case of migrants, cancellation of permits, detention, and deportation. In 2020, Malaysia cancelled the visa of a migrant worker who spoke to Al Jazeera, criticising Malaysia’s detention of undocumented migrants. Authorities reportedly undertook a nationwide manhunt to find the migrant worker, detained him for a month, then deported him and permanently banned him from re-entering the country.[xxxii] Al Jazeera’s offices were additionally raided and seven journalists summoned for questioning, two of whom were refused renewals of their work permits.[xxxiii]
6. RECOMMENDATIONS DURING THE 3RD CYCLE
During the 3rd cycle of the Universal Periodic Review (40th session, February/March 2019), Malaysia supported several recommendations relevant to the human rights of migrants, refugees, and asylum seekers. However, the specific issue of immigration detention did not garner recommendations. Relevant recommendations included:
- Consider or move towards ratifying key human rights instruments including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Latvia, Turkey, Chile, Philippines, Iraq, Kazakhstan) (paras. 151.24, 151.9, 151.26, 151.31, 151.5, 151.6)
- Increase efforts to prosecute and convict human traffickers, including complicit officials; protect victims; and reduce migrant workers’ vulnerability to debt bondage (USA) (para. 151.119)
- Ensure all foreign workers have the right to full access to justice and legal remedies (Bangladesh) (para. 151.149)
- Continue to take further necessary measures to ensure protection of the rights of migrant workers (Nepal) (para. 151.267)
- Take necessary measures to prevent and punish all forms of violence against migrant workers, including hate crimes and racism (Myanmar) (para. 151.266)
- During the same cycle of the UPR, Malaysia received several relevant recommendations that it merely noted, including:
- Take legislative or administrative measures, including ratifying the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, to provide legal status to refugees and asylum seekers to allow them to reside, work and access education and health care in Malaysia (Canada) (para. 151.42)
- Ensure asylum-seeking and refugee children have access to education (Honduras, Greece, Afghanistan) (paras. 151.197, 151.251, 151.268)
- Ensure that all migrant workers and their families have access to medical services, including for sexual and reproductive health (Honduras) (para. 151.263)
- Amend legislation used to arbitrarily detain individuals without trail (UK, Spain) (paras. 151.126, 151.141)
7. RECOMMENDATIONS FROM OTHER HUMAN RIGHTS INSTRUMENTS
Several UN human rights bodies have assessed Malaysia’s treatment of asylum seekers, refugees, and migrants and provided relevant recommendations:
- In 2018, the UN Committee on the Elimination of Discrimination against Women (CEDAW) issued several recommendations directly related to the country’s immigration detention practices. These included adopting national legislation that codifies the principle of non-refoulement; ensuring full access to asylum procedures; establishing alternatives to detention; taking concrete steps to ensure that detained women and girls have access to adequate hygiene facilities and material necessities and are protected from gender-based violence; and ensuring that migrant women–particularly undocumented migrant women–, women confined in immigration detention centres, and asylum-seeking and refugee women have access to justice and recourse to effective remedies.[xxxiv]
- The CEDAW committee also urged the country to immediately repeal the directive requiring public hospitals to refer undocumented migrants and asylum seekers to the Immigration Department when they seek care – a practice that it warned has “serious consequences for maternal, foetal and infant mortality and morbidity as women are deterred from seeking essential health-care services for fear of arrest and detention.”
- During the same review, the committee also noted its concern regarding the treatment of victims of trafficking in the country–including the lack of a formal and uniform identification procedure for victims of trafficking, which leads to the punishment of victims for violating immigration laws. The committee thus encouraged the country to ensure that victims are not punished and instead obtain effective protection.[xxxv]
8. RECOMMENDATIONS FOR CONSIDERATION DURING 4th UPR CYCLE
Arbitrary detention of migrants, refugees, asylum seekers, stateless persons, and victims of trafficking: Malaysia must implement a series of legal and policy reforms in order to ensure that immigration detention is always a measure of last resort, based on an individual assessment of each case that establishes the necessity and proportionality of each detention decision. This requires establishing fair and effective screening processes assessing individual and family vulnerabilities and resiliencies, and systematically consider the viability of non-custodial, alternatives to detention measures before issuing a detention order. Importantly, the detention of any at-risk or vulnerable person is arbitrary in nature, and thus representants a breach of Malaysia’s human rights obligations (see additional recommendations about specific groups below). As the UN Working Group on Arbitrary Detention affirms in in its “Revised Deliberation No. 5 on deprivation of liberty of migrant”: “Detention of migrants in other situations of vulnerability or at risk, such as pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, lesbian, gay, bisexual, transgender and intersex persons, or survivors of trafficking, torture and/or other serious violent crimes, must not take place.
RECOMMENDATIONS
- Establish fair and effective screening measures to identify all at-risk or vulnerable people and ensure that once they are identified that they are removed from immigration enforcement procedures and their care and case management is taken over by appropriate social welfare institutions.
- Ramp up the development of non-custodial alternatives to detention, focusing on housing in the community, to ensure that all detention decision-making procedures fully incorporate assessment of the viability of non-detention measures before a detention order is issued.
- Impose a time limit on detention and ensure detainees have the ability to challenge the grounds of their detention before a court or other competent, independent and impartial authority.
- Provide all detainees with access to legal aid, and extend access to the domestic legal aid scheme to all non-citizens, regardless of nationality or status.
Arbitrary criminalization of migrants: Malaysia’s prosecution and imprisonment of non-citizens for breaches of immigration laws is excessive, disproportionate, and thus arbitrary. This has been clearly established by the UN Working Group on Arbitrary Detention in its “Revised Deliberation No. 5 on deprivation of liberty of migrant,” which provides: “The irregular entry and stay in a country by migrants should not be treated as a criminal offence, and the criminalization of irregular migration will therefore always exceed the legitimate interests of States in protecting their territories and regulating irregular migration flows. Migrants must not be qualified or treated as criminals, or viewed only from the perspective of national or public security and/or health.”
RECOMMENDATIONS
- Amend all relevant immigration and criminal laws to disallow the prosecution of non-citizens for violations of immigration entry and stay provisions.
- Immediately cease caning and all other forms of corporal punishment for people who have violated immigration laws.
Detention of children: Malaysia’s detention of migrant and refugee children is a breach of the best interests principle enshrined in the Convention on the Rights of the Child, which the Committee on the Rights of Child has repeatedly unscored, including in its General Comment No. 23/No.4 (2017), which affirms that “children should never be detained for reasons related to their or their parents’ migration status and States should expeditiously and completely cease or eradicate the immigration detention of children. Any kind of child immigration detention should be forbidden by law and such prohibition should be fully implemented in practice.” In the General Comment, the Committee insists that all migrant children, including their families, must be removed from detention procedures. Instead, “States should adopt solutions that fulfil the best interests of the child, along with their rights to liberty and family life, through legislation, policy and practices that allow children to remain with their family members and/or guardians in non-custodial, community-based contexts while their immigration status is being resolved and the children’s best interests are assessed, as well as before return. When children are unaccompanied, they are entitled to special protection and assistance by the State in the form of alternative care and accommodation in accordance with the Guidelines for the Alternative Care of Children.”
RECOMMENDATIONS
- Cease the immigration detention of children and provide appropriate non-custodial accommodation for children and their families, in line with the recommendations provided in the CRC/CMW General Comment No. 23/No.4.
- Adopt laws that abolish the immigration detention of children and families.
- Withdraw all reservations under the UN Convention on the Rights of the Child to better protect refugee and asylum seeker children in Malaysia.
- In the interim, until laws are adopted explicitly prohibiting the detention of children and/or their families, Malaysia must ramp up use of alternatives to detention measures and release children and families so that they are housed in the community pending outcome of their immigration or asylum procedures. For those who remain in detention, Malaysia must ensure the non-separation of families in detention centres and that children are never detained with adults who are not family members.
Detention of women: Malaysia’s immigration detention of women—including refugees and asylum seekers as well as those with specific needs such as pregnant and lactating women—is in breach of its obligations under Articles 1, 2, 5(a), 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Committee General Recommendation 32, which places an onus on CEDAW state parties to ensure that refugee and asylum seeker women within their jurisdiction are not exposed to violations of their rights under CEDAW.
RECOMMENDATIONS
- Cease the immigration detention of women who are refugees or asylum seekers, as well as women with specific needs such as pregnant and lactating women.
- Provide adequate facilities and services that meet the specific needs of women in detention, including effective screening for vulnerabilities and gender sensitivity training for staff at detention centres.
Detention of victims of trafficking: Malaysia’s failure to provide vulnerability screening and to actively work to identify victims to trafficking is leading to the arrest and detention of non-citizens in breach of the non-punishment principle, a fundamental norm at the heart of anti-trafficking treaties and laws that is intended to prevent the punishment of people for being victims of crimes. Both criminal punishment and administrative detention are measures that run afoul of this principle, which is highlighted by the Special Rapporteur on Trafficking in her report to the UN Human Rights Council, “Implementation of the Non-Punishment Principle.”[xxxvi] The non-punishment principle is also guaranteed in the 2015 ASEAN Convention against Trafficking in Persons, Especially Women and Children (ACTIP), Article 14(7) of which requires states to “consider not holding victims of trafficking criminally or administratively liable.” A 2022 report for ASEAN also highlights that “Article 13 of the 2012 ASEAN Human Rights Declaration (AHRD) explicitly affirms that no one shall be subject to trafficking in persons, and Article 2 sets out the principle of non-discrimination on the basis of race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth disability or other status, which is very important in the application of the non-punishment principle for victims of trafficking.”[xxxvii]
RECOMMENDATIONS
- Cease the immigration detention of all victims of trafficking and provide necessary social and legal assistance, as well as protections from their traffickers.
- Establish effective vulnerability screening and work to actively identify victims of trafficking.
- Ensure that all asylum seekers and refugees who are trafficking survivors can access adequate services and protection. This includes access to UNHCR and trafficking (TIP) facilities and protection from deportation in accordance with the principle of non-refoulement.
- Enable the full implementation of 2015 amendments to the anti-trafficking law to allow, inter alia, freedom of movement and the right to work, preventing against the de facto detention of trafficking survivors in government TIP facilities.
- Reform domestic law provisions to distinguish smuggled migrants from trafficking survivors.
- Enhance enforcement efforts to ensure traffickers are prosecuted and punished according to international standards, and immediately stop the criminalization of trafficking survivors for violation of immigration and labour laws.
Detention of refugees and asylum seekers: Malaysia’s ongoing detention and prosecution of people fleeing war and persecution, in particular stateless Rohingya people, underscores the country’s lack of respect for fundamental human rights and humanitarian norms.
RECOMMENDATIONS
- Develop a comprehensive legal and formal framework for the identification, protection and processing of refugees and asylum seekers, to provide them with due legal status and recognition in line with international standards.
- Ratify the Refugee Convention and Protocol, and enact/amend relevant national laws to incorporate the provisions.
- Reform the Immigration Act to legally exempt asylum seekers and refugees from arrest, detention, and prosecution for irregular entry.
- Institute screening and assessment procedures to enable refuges and asylum seekers to be clearly identified and their individual circumstances assessed.
- Provide UNHCR unfettered access to all detained refugees and asylum seekers.
- Provide asylum seekers and refugees in detention with access to legal aid, and extend access to the domestic legal aid scheme to all non-citizens, regardless of nationality or status.
- Immediately cease the arrest and detention of Rohingya, whose stateless condition makes them vulnerable to arbitrary detention that exceeds all grounds of necessity and proportionality.
- Increase access for stateless refugees to durable solutions such as resettlement, integration, and safe and voluntary repatriation, including by providing specific pathways and routes to overcome the barriers encountered by stateless people.
- End all policies denying asylum seekers entry at frontiers, including push-back policies against boat arrivals.
- Ensure adequate reception facilities to all asylum seekers upon arrival.
Conditions and operations at detention centre
RECOMMENDATIONS
- Urgently implement Malaysia’s commitments addressed in previous UPR cycles to improve its detention infrastructure and ensure that detention conditions are in line with international standards.
- Take concrete measures to eradicate all forms of abuse of detainees.
- Urgently implement Malaysia’s commitments during previous UPR cycles to ensure universal access to affordable health services for poor, marginalized, and vulnerable groups, including by removing prohibitively expensive fees and charges, and ensure that these reforms are extended to people in immigration detention centres.
Transparency and accountability
RECOMMENDATIONS
- Provide unimpeded access to detention centres by UNHCR and other international organisations with detention monitoring mandates.
- Provide unimpeded access to immigration detention centres and sufficient resources to SUHAKAM so that the human rights commission can meaningfully carry out its monitoring work.
- Ensure access to other stakeholders to provide necessary services, including inter alia legal assistance, psychosocial, and medical services.
- Ensure that data on the numbers of persons held in immigration detention is systematically collected and publicly disseminated, and is disaggregated by age, gender, nationality, migration status, ethnicity, and grounds for detention, and includes statistics on death, suicides, self-harming, and health-related problems amongst detainees.
SEE ALSO:
[i] The Star, “Depot riot: 104 Rohingya still at large, says Hamzah,” 21 April 2022, https://www.thestar.com.my/news/nation/2022/04/21/depot-riot-104-rohingya-still-at-large-says-hamzah
[ii] UN High Commissioner for Refugees, "Refugee Data Finder," website accessed on 12 June 2023, https://www.unhcr.org/refugee-statistics/
[iii] Migration Data Portal, "Total number of international migrants at mid-year 2020,"website accessed on 12 June 2023, https://www.migrationdataportal.org/international-data?i=stock_abs_&t=2020&cm49=84
[iv] Institute on Statelessness and Inclusion, “Surviving Statelessness and Trafficking: A Rohingya Case Study of Intersections and Protection Gaps,” June 2023, https://files.institutesi.org/Surviving_Statelessness_and_Trafficking_a_Rohingya_Case_Study.pdf
[v] Act 155, Immigration Act 1959/63. Amended up to 1 January 2006. Section 55E (7). http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%20155.pdf
[vi] Institute on Statelessness and Inclusion, “Surviving Statelessness and Trafficking: A Rohingya Case Study of Intersections and Protection Gaps,” June 2023, https://files.institutesi.org/Surviving_Statelessness_and_Trafficking_a_Rohingya_Case_Study.pdf
[vii] Amnesty International, “A Blow to Humanity: Torture by Judicial Caning in Malaysia,” December 2010, https://www.amnesty.org/en/documents/ASA28/013/2010/en/
[viii] A. Netto, “Illegal Migrant Workers May Escape the Cane,” Inter Press Service, 20 March 2007, http://www.ipsnews.net/2007/03/malaysia-illegal-migrant-workers-may-escape-the-cane/
[ix] Y. Meikeng, “Zahid: Over 8,000 prisoners caned last year,” The Star online, 12 November 2014, http://www.thestar.com.my/News/Nation/2014/11/12/Zahid-Parliament-prisoners-caned/
[x] Reuters, “Malaysia spares Rohingya refugees from caning,” 22 July 2020, https://www.reuters.com/article/myanmar-rohingya-malaysia-idINKCN24N0NN
[xi] H. R. Abdul Rashid, “3 Mongolian women detained after reporting cop for alleged rape of 2 others,” Malaysiakini, 14 April 2020.
[xii] U.S. State Department, “2022 Trafficking in Persons Report,” https://www.state.gov/reports/2022-trafficking-in-persons-report/malaysia/
[xiii] Immigration Detention Monitor, “Malaysia,” Global Detention Project, 3 May 2022, https://www.globaldetentionproject.org/03-may-2022-malaysia
[xiv] Global Detention Project, “Malaysia Statistics & Data,” https://www.globaldetentionproject.org/countries/asia-pacific/malaysia#statistics-data
[xv] Global Detention Project, “Malaysia Statistics & Data,” https://www.globaldetentionproject.org/countries/asia-pacific/malaysia#statistics-data
[xvi] The Star, “Immigration Dept denies allegations depots overcrowded, understaffed,” 26 April 2022, https://www.thestar.com.my/news/nation/2022/04/26/immigration-dept-denies-allegations-depots-overcrowded-understaffed
[xvii] Question No 60, Notice of Oral Answers in the House of Representatives, Second Meeting, Second Term, Fifteenth Parliament, 24 May 2023.
[xviii] G. Chee Yuan. “Government spends RM2m a day to feed illegal immigrants, says deputy minister,” The Star Online, 6 January 2014, http://www.themalaymailonline.com/malaysia/article/government-spends-rm2m-a-day-to-feed-illegal-immigrants
[xix] Global Detention Project, “Malaysia Statistics & Data,” https://www.globaldetentionproject.org/countries/asia-pacific/malaysia#statistics-data
[xx] Asia Pacific Refugee Rights Network, International Detention Coalition, ASEAN Parliamentarian on Human Rights, Asian Forum for Human Rights and Development (FORUM-ASIA), “[Joint Statement] Malaysia: International Human Rights Community Urges Malaysian Government to Rethink Immigration Detention Policies and Practices,” May 2022, https://hrasean.forum-asia.org/statements/joint-statement-malaysia-international-human-rights-community-urges-malaysian-government-to-rethink-immigration-detention-policies-and-practices/
[xxi] Protecting Rohingya Refugees in Asia (PRRiA) and International Detention Coalition, “Impact of Prolonged Immigration Detention on Rohingya Families and Communities in Malaysia,” 24 May 2023, https://mixedmigration.org/resource/impact-prolonged-immigration-detention-rohingya-malaysia/
[xxii] Protecting Rohingya Refugees in Asia (PRRiA) and International Detention Coalition, “Impact of Prolonged Immigration Detention on Rohingya Families and Communities in Malaysia,” 24 May 2023, https://mixedmigration.org/resource/impact-prolonged-immigration-detention-rohingya-malaysia/
[xxiii] Free Malaysia Today, “Reconsider Shutting Down UNHCR’s Malaysian Office, Govt Told,” 13 October 2022, https://www.freemalaysiatoday.com/category/nation/2022/10/13/reconsider-shutting-down-unhcrs-malaysian-office-govt-told/
[xxiv] Protecting Rohingya Refugees in Asia (PRRiA) and International Detention Coalition, “Impact of Prolonged Immigration Detention on Rohingya Families and Communities in Malaysia,” 24 May 2023, https://mixedmigration.org/resource/impact-prolonged-immigration-detention-rohingya-malaysia/
[xxv] Protecting Rohingya Refugees in Asia (PRRiA) and International Detention Coalition, “Impact of Prolonged Immigration Detention on Rohingya Families and Communities in Malaysia,” 24 May 2023, https://mixedmigration.org/resource/impact-prolonged-immigration-detention-rohingya-malaysia/
[xxvi] Protecting Rohingya Refugees in Asia (PRRiA) and International Detention Coalition, “Impact of Prolonged Immigration Detention on Rohingya Families and Communities in Malaysia,” 24 May 2023, https://mixedmigration.org/resource/impact-prolonged-immigration-detention-rohingya-malaysia/
[xxvii] Amnesty International, “Deaths of Six Detainees at Sungai Bakap,” 20 April 2022, https://www.amnesty.my/2022/04/21/deaths-of-six-detainees-at-sungai-bakap/
[xxviii] Coalition of Sovereign Migrant Workers, “Executive Summary – “A Report from Hell”: Conditions of the immigration detention centres in Sabah, Malaysia,” 25 June 2022, https://drive.google.com/file/d/1Hg_cuIpQtDGmXcZ-NA0H5xA77nt4kFbw/view
[xxix] Protecting Rohingya Refugees in Asia (PRRiA) and International Detention Coalition, “Impact of Prolonged Immigration Detention on Rohingya Families and Communities in Malaysia,” 24 May 2023, https://mixedmigration.org/resource/impact-prolonged-immigration-detention-rohingya-malaysia/
[xxx] Protecting Rohingya Refugees in Asia (PRRiA) and International Detention Coalition, “Impact of Prolonged Immigration Detention on Rohingya Families and Communities in Malaysia,” 24 May 2023, https://mixedmigration.org/resource/impact-prolonged-immigration-detention-rohingya-malaysia/
[xxxi] Protecting Rohingya Refugees in Asia (PRRiA) and International Detention Coalition, “Impact of Prolonged Immigration Detention on Rohingya Families and Communities in Malaysia,” 24 May 2023, https://mixedmigration.org/resource/impact-prolonged-immigration-detention-rohingya-malaysia/a
[xxxii] bdnews24.com, “Rayhan Kabir, a Bangladeshi worker, returns home after deportation from Malaysia,” 22 August 2020, https://bdnews24.com/bangladesh/rayhan-kabir-a-bangladeshi-worker-returns-home-after-deportation-from-malaysia
[xxxiii] Reporters Without Borders, “RSF denounces Malaysia’s harassment of Al Jazeera journalists,” 7 August 2020, https://rsf.org/en/rsf-denounces-malaysia-s-harassment-al-jazeera-journalists
[xxxiv] UN Committee on the Elimination of Discrimination against Women (CEDAW), “Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia,” CEDAW/C/MYS/CO/3-5, 14 March 2018, https://uhri.ohchr.org/Document/File/3dbea41d-5e0e-4acc-ab7e-4285c254eb72/216AA333-B592-4AAE-B58A-6B5F93406C72
[xxxv] UN Committee on the Elimination of Discrimination against Women (CEDAW), “Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia,” CEDAW/C/MYS/CO/3-5, 14 March 2018, https://uhri.ohchr.org/Document/File/3dbea41d-5e0e-4acc-ab7e-4285c254eb72/216AA333-B592-4AAE-B58A-6B5F93406C72
[xxxvi] UN Human Rights Council, “Implementation of the Non-Punishment Principle. Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Siobhán Mullally*,” A/HRC/47/34, 17 May 2021, https://www.ohchr.org/en/documents/thematic-reports/ahrc4734-report-implementation-non-punishment-principle
[xxxvii] M. McAdam, “Implementation of the Non-Punishment Principle for Victims of Human Trafficking in ASEAN Member States,” Australian Aid and ASEAN-Australia Counter Trafficking, March 2022, https://www.aseanact.org/wp-content/uploads/2022/04/Non-Punishment_print_smallsize.pdf
DETENTION STATISTICS
DETAINEE DATA
DETENTION CAPACITY
ALTERNATIVES TO DETENTION
ADDITIONAL ENFORCEMENT DATA
PRISON DATA
POPULATION DATA
SOCIO-ECONOMIC DATA & POLLS
LEGAL & REGULATORY FRAMEWORK
GROUNDS FOR DETENTION
Children & Other Vulnerable Groups
LENGTH OF DETENTION
DETENTION INSTITUTIONS
Custodial Authorities
Detention Facility Management
Department of Depot Management, Ministry of Home Affairs, in peninsular Malaysia and Sarawak
(Governmental)
Immigration Department, with collaboration from the prisons department, police, RELA (Peoples Volunteer Corps under the Ministry of Home Affairs) and the civil defence force (JPAM).
(Governmental)
PROCEDURAL STANDARDS & SAFEGUARDS
Procedural Standards
COSTS & OUTSOURCING
COVID-19 DATA
TRANSPARENCY
MONITORING
Types of Authorised Detention Monitoring Institutions
Human Rights Commission of Malaysia (SUHAKAM)
(National Human Rights Institution (or Ombudsperson) (NHRI))
NATIONAL HUMAN RIGHTS MONITORING BODIES
NATIONAL PREVENTIVE MECHANISMS (OPTIONAL PROTOCOL TO UN CONVENTION AGAINST TORTURE)
NON-GOVERNMENTAL ORGANISATIONS (NGOs)
GOVERNMENTAL MONITORING BODIES
INTERNATIONAL DETENTION MONITORING
INTERNATIONAL TREATIES & TREATY BODIES
International Treaties Ratified
Ratification Year
Observation Date
Ratio of relevant international treaties ratified
Ratio: 4/19
Relevant Recommendations or Observations Issued by Treaty Bodies
Recommendation Year
Observation Date
Committee on the Elimination of Discrimination Against Women
§ 14. Recalling its general recommendation No. 33 (2015) on women ’ s access to justice, the Committee recommends that the State party:
(a) Simplify the procedure for gaining access to legal aid and ensure that it is available and accessible to all women, regardless of nationality in all cases of criminal, civil, social, administrative, constitutional and family law;
(b) Identify and address the specific obstacles faced by women who are in disadvantaged situations, including migrant women, in particular undocumented migrant women, women held in immigration detention centres, and asylum-seeking and refugee women, so as to ensure that they have access to justice and recourse to effective remedies;
(c) Strengthen the gender responsiveness and gender sensitivity of the justice system, including by increasing the number of women in the justice system and providing systematic capacity-building for judges, prosecutors, lawyers, police officers and other law enforcement officials on the Convention, the Committee’s jurisprudence and its general recommendations;
(d) In its next periodic report, provide data disaggregated by sex, age, nationality and other relevant factors on the number of applicants for legal aid, the number of individuals who were assisted and the number of cases that were concluded in favour of the applicant.
...
§ 46. With reference to its general recommendation No. 32 (2014) on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, the Committee recommends that the State party:
[...]
(e) Establish alternatives to detention for asylum-seeking and refugee women and girls, and in the interim take concrete measures to ensure that detained women and girls have access to adequate hygiene facilities and material necessities and are protected from all forms of gender-based violence, including by ensuring that all complaints are effectively investigated, perpetrators are prosecuted and adequately punished and victims are offered effective remedies;
[...]
2018
2018
Committee on the Rights of the Child
§ 83. In the light of articles 3 and 22 and other relevant provisions of the Convention, the Committee recommends that the State party, taking into account the Committee’s General Comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin (CRC/GC/2005/6):
(a) Take urgent measures not to detain children in connection with immigration proceedings unless it is necessary to protect their best interests - and then forthe shortest time possible, and establish a screening process to ensure that groups with special needs, such as refugees and asylum-seekers, including theirchildren, are rapidly identified;
[...]
(e) If detention is necessary in a particular, exceptional case, take all measures necessary to make this as short as possible and provide for special protection and assistance measures for refugee and asylum-seeking children and their families while in detention, in line with relevant international standards.
2007
2007
> UN Special Procedures
Relevant Recommendations or Observations by UN Special Procedures
Recommendation Year
Observation Date
Working Group on arbitrary detention
"117. Regardless of immigration status, nobody should be subjected to arbitrary detention or appalling detention conditions. The Government is reminded that it is its responsibility to guarantee the right to physical and psychological integrity and the right to security in immigration detention centres.[...]
119. The Government should also rule out detention of asylum-seekers and refugees as well as vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, people with serious and/or chronic physical or mental health problems.
120. The Government should, in all cases, provide for automatic periodic review by a court of law on the necessity and legality of detention.
121. The Government should also provide for an effective remedy for detainees to challenge the necessity and legality of detention at any time of the detention period and ex post facto, and define the circumstances.
122. As long as there is a regime of mandatory administrative detention for migrants in an irregular situation, the Government should legally define its maximum period rather than basing it on Government regulations or policy.
123. The Government should also provide for a system of legal aid for immigration detainees.
124. The Government should assume the responsibility of improving the conditions in immigration detention centres as a matter of urgency.
125. RELA [Ikatan Relawan Rakyat Malaysia Volunteer Corps], as a volunteer force, should not be used for law enforcement nor for guarding immigration detention centres. "
2010
2010
2010
> UN Universal Periodic Review
HEALTH CARE PROVISION
HEALTH IMPACTS
COVID-19
Country Updates
On 20 April 2022, 528 Rohingya refugees--including 97 women, 294 men, and 137 children--escaped from the Relau detention centre in Sungai Bakap. According to a new local news agency, immediately before the escape there had been a “riot” at the detention centre. Most of the detainees were quickly re-detained, though seven--including three children--died while trying to cross a highway during their escape. The police have warned villagers that anyone found to be harbouring refugees could face prosecution under the Immigration Act 1959/1963 and the county’s penal code.
A consortium of NGOs, including APRRN and IDC, reported in early May that large numbers of Rohingya refugees are being held indefinitely in Malaysian immigration detention centres without the possibility of release and cannot be deported. The Malaysian Home Minister, Hamzah Zainudin, said that some refugees held at the Relau detention centre in Sungai Bakap have been detained there for over two years. Zainudin said that deportation was not possible as Myanmar was not willing to take them back and does not recognise their citizenship status. However, the NGOs highlighted that the Malaysian government has refused to allow the UNHCR access to detention centres to conduct refugee status determination procedures since August 2019.
UNHCR data indicates that in 2020, there were 129,909 refugees, 49,822 asylum seekers and 111,298 stateless persons in Malaysia. The Malaysian Immigration Department reported that as of 26 April 2022, there were 17,634 people in immigration detention centres across the country, including 3,211 women and 1,528 children. Between 2018 and February 2022, there have been 208 deaths in immigration detention centres across the country due to, inter alia, COVID-19, tuberculosis, severe pneumonia, heart complications, dengue and diabetes.
In a joint statement on the situation in Relau detention centre, APRRN, IDC, the ASEAN Parliamentarian on Human Rights, and the Asian Forum for Human Rights and Development (Forum-Asia) urged Malaysia to release all persons registered with UNHCR from immigration detention centres and grant UNHCR access to all centres to continue the registration of persons of concern; grant access to detention centres to Doctors Without Borders Malaysia to ensure detainees have access to medical treatments and support services; carry out a comprehensive review of the current policies and practices of immigration detention centres in Malaysia to ensure that they are in line with international standards; to ensure full transparency of the investigation and review, and make the process and results available to the public; and take steps to enact legal and policy changes to ensure children are no longer detained for migration-related reasons.
Malaysia is not a signatory to the 1951 Convention Relating to the Status of Refugees and it has failed to adopt legislation recognising the legal status of asylum seekers and refugees, who are thus considered “illegal immigrants” under the Immigration Act 1959/1963. According to Verghis et al. (2021), while Malaysia provides a 50 percent discount off foreigner’s rate for medical fees incurred by UNHCR recognised refugees and asylum seekers, it remains unaffordable as they do not have the right to work. With the onset of COVID-19, the government assured undocumented migrants that they would not be arrested if they came forward for testing for COVID-19. Nonetheless, the subsequent mass testing of migrants in certain “Enhanced Movement Control Order” (i.e. strict lockdown) areas led to crackdowns on undocumented migrants through mass arrests and immigration raids, which included asylum seekers pending registration by UNHCR and UNHCR cardholders whose registration had expired and could not be renewed due to lockdown. These people were detained in immigration detention centres, to be deported to their countries of origin. Clusters of COVID-19 were detected in at least three of these centres.
In February 2021, the government of Malaysia said that they would extend its free COVID-19 vaccination programme to all foreigners, including students, refugees, and undocumented migrants. UNHCR welcomed the government’s efforts to ensure vaccination access to all and encouraged all refugees and asylum seekers holding UNHCR documentation to register their interest for COVID-19 vaccination through several online platforms. Nonetheless, due to the crackdown on undocumented migrants and mass arrests of refugees, many were wary of getting a COVID-19 vaccine in a government walk-in centre for undocumented migrants. According to data collected by the Oxford Martin School, Oxford University and the Global Change Data Lab, as of 1 May 2022, 81.55% of the Malaysian population had been fully vaccinated against COVID-19.
Since the onset of the pandemic, Malaysian authorities have argued that crack-downs on undocumented migrants and other non-nationals are necessary to stop the spread of COVID-19. A recent example is the 24 May-28 June 2021 nationwide lockdown--referred to in Malaysia as a Movement Control Order (MCO)--during which Home Ministry officials have carried out wide-scale raids leading to the arrest of hundreds of undocumented migrants. Officials have said the raids are necessary to ensure that foreigners get vaccinated. Said the Home Minister: “If they are not detained, will they go out to get vaccinated? That is why they are detained.”
This policy appears to directly contradict earlier comments made by Malaysia’s Co-ordinating Minister for Immunisation, in which he reassured non-nationals that they would not face retribution should they come forward for vaccination (see 18 February 2021 update on this platform).
NGOs, lawyers, and health experts have condemned the new wave of raids, arguing that such measures will encourage non-nationals to flee and hide from authorities, complicating efforts to curb the virus. They point, also, to the spike in infections witnessed within detention facilities following raids in May 2020 (for more, see 4 June 2020 update on this platform). As the director of the Malaysian Medicine Association said following a raid in the city of Cyberjaya in which 202 undocumented migrants were rounded up: “The usual practice of ‘raid and detain’ must stop and better ways should be sought to tackle the problem of undocumented migrants. More raids will result in more detention centre clusters as we have repeatedly seen.”
In the wake of these raids, tensions appear to have emerged between the Malaysian government and UNHCR. On 12 June, the Home Ministry said that it had requested that UNHCR supply its list of all refugees in the country for the purpose of vaccinations. According to a news article published on 15 June, the Home Minister alleged that UNHCR had stipulated that such data can only be shared if authorities can provide assurance that refugees will not be arrested--a condition that the minister claimed showed UNHCR to be “not sincere” and which was upsetting his plans to vaccinate non-nationals. However, a spokeswoman for UNHCR denied that such a condition had been set, and that the agency had been working closely with the government since the start of the pandemic. She did, however, confirm that UNHCR advocates for no arrests of refugees and asylum seekers. “We have advocated with the Malaysian government to not arrest and detain refugees and asylum seekers, including those with expired UNHCR documents, especially because refugees have not been able to travel to UNHCR due to the restrictions under the MCO. Others are in the process of registration and do not yet have UNHCR documentation.”
The latest wave of raids appears to be part of a broad Malaysian policy trend towards migrants, refugees, and asylum seekers that views these non-citizens as transmitters of the virus. This trend was reflected in a recent Immigration Department post on Facebook, later deleted, which featured a military image accompanied by a caption which, translated, said: “Ethnic Rohingya migrants, your arrival is unwelcomed.” Commented Amnesty International: “The Malaysian government must explain why, especially in the time of a global pandemic, they have chosen to attack people in need. Refugees and migrants deserve to have their humanity upheld; Malaysians deserve a government that respects the rights and dignity of all.”
On 1 June, UNHCR expressed concern regarding vaccine shortages in the Asia-Pacific region, and a worrying increase in COVID-19 cases amongst refugees and asylum seekers in Malaysia--as well as in Nepal, Iran, Pakistan, Thailand, and Indonesia.
In the face of mounting international outrage, on 23 February Malaysian authorities proceeded with the deportation of 1,086 people to Myanmar, who included suspected refugees as well as many children (see the 18 February update below for additional details). The deportations took place as the COVID-19 pandemic has severely hurt the job prospects of migrants in Malaysia, effectively turning many documented workers into undocumented ones and potentially subject to immigration enforcement measures.
The mass deportation to Myanmar was in defiance of a court order to delay the move until a judicial review could be completed, a legal move that had been initiated by the Malaysian chapters of Amnesty International and Asylum Access, who provided evidence of refugees and asylum seekers being among the group. The deportation was carried out without assessing the people’s claims for asylum, or allowing the UN High Commissioner for Refugees access to the people while in detention before their deportation. Human Right Watch’s Asia Advisor commented: “Malaysia’s immigration authorities have shown a blatant disregard both for the basic rights of Myanmar nationals and an order by the Malaysian High Court. The immigration director-general has put lives at risk by sending people back to a country now ruled again by a military that has a long track record of punishing people for political dissent or their ethnicity.”
The Office of the UN High Commissioner for Human Rights also condemned the deportations, saying: “The Malaysian authorities in defiance of the court order breached the principle of non-refoulement, a rule of jus cogens, which absolutely prohibits the collective deportation of migrants without an objective risk assessment being conducted in each individual case. Children should not have been separated from their family, or returned without determining that their return is in their best interests.”
Responding to the concerns about the identity and status of the deportees, the Malaysian director-general of immigration claimed that none of the deportees were Rohingya refugees or asylum seekers. However, on 22 February the UN refugee agency claimed that at least up to six of the people to be deported were registered refugees, and 17 were children with at least one parent in Malaysia. Various refugee rights groups had also contended that approximately one hundred Muslim and Chin refugees were among the group initially slated for deportation. These refugees may have been among the group that were not ultimately deported, though Amnesty International reported as of 24 February that the identities of these people remained unclear. The High Court of Kuala Lumpur ruled on 24 February that they should not be sent back to Myanmar, extending the stay order until 9 March 2021.
The government claimed that all deportees voluntarily agreed to their return. However, it was unclear how many people in fact agreed, and under what conditions. There are concerns that many of the deportees may not have been informed about the political volatility in the country after the coup due to limited information being available during detention.
Despite strong criticism from civil society organisations and the UN, Malaysian authorities are preparing to deport 1,200 people to Myanmar on 23 February even as the crisis in Myanmar spurred by the recent military coup there continues to deepen. Observers are particularly concerned that refugees and asylum seekers will be amongst those deported by Malaysia.
Deportees are due to be returned by military vessels, provided by Myanmar’s navy. Although Malaysia claims that the deportees are not refugees or asylum seekers, organisations such as Amnesty International have questioned the validity of such statements. They point to the fact that Malaysia has denied UNHCR access to immigration detention centres to identify asylum seekers and refugees since August 2019. “UNHCR must immediately have full access to the 1,200 people,” said the Executive Director of Amnesty International Malaysia in a statement on 18 February. “Prime Minister Muhyiddin Yassin must instruct the immigration department to work closely with UNHCR to ensure not a single person seeking asylum, refugee or anyone who may be at risk of human rights violations is forced to return to Myanmar. To do so would be in violation of the principle of non-refoulement, which applies to Malaysia as part of customary international law.”
Several refugee support organisations, including Myanmar Muslim Refugee Community and Alliance of Chin Refugees, have also confirmed that they have been contacted by members of the refugee groups they represent who are facing deportation, and claim that nearly 100 asylum seekers--including women and children--are amongst the group due to be deported. As of 18 February, UNHCR had yet to verify this claim.
Malaysia has faced condemnation for its roundups and detention of migrants during the COVID-19 pandemic (see 3 May Malaysia update on this platform), with reports indicating that many non-nationals are reluctant to come forwards for COVID-19 testing or treatment out of fear that they too will be arrested and detained (see 25 November Malaysia update). On 17 February, however, the minister responsible for immunisation coordination (Khairy Jamaluddin, Minister for Science and Technology) claimed that undocumented migrants would not be arrested if they presented themselves for vaccination. In a press briefing, the minister said, "We will work with civil society organisations to assist us in reaching out to undocumented foreigners with the assurance that they will not be detained. They can come forward freely.”
Despite the minister’s statement, a former deputy defence minister - Liew Chin Tong - believes that undocumented migrants and refugees will refuse to come forwards to receive the vaccine unless they receive stronger assurances from the immigration department and police themselves. He said: “It’s important that everyone is vaccinated, particularly those in high-risk groups such as migrant workers and refugees. But I don’t think the illegal migrants will come out for it. They will not trust Khairy’s words until and unless there is a rethink on the part of the Immigration Department, the police and all other security agencies.”
The country’s DAP Socialist Youth party has also questioned whether such promises will reassure non-nationals. The party’s deputy chairman argues that verbal promises from a minister unconnected to immigration will fail to reassure migrants and refugees, and instead urged the government to conduct a legalisation programme for undocumented foreigners parallel to its vaccination programme. “Some employers and migrant workers might be worried that the government might talk the talk but not walk the walk due to uncoordinated government responses,” he said.
In stark contrast to the increasing efforts by many countries around the world to decrease or end child immigration detention, Malaysia continues to detain large numbers of children, despite the dangers presented by the spread of COVID-19. While UNICEF has called on governments to immediately release children to protect them during the pandemic, Malaysia reported in October that it was holding hundreds of children in migration-related detention. According to information provided by the country’s Home Minister in response to questions from Parliament, 756 children were being held in migration detention as of 26 October 2020. Of these, 405 were unaccompanied--326 of whom were unaccompanied child refugees from Myanmar.
UNHCR, however, has been denied access to immigration detention centres since August 2019, and thus cannot clarify the refugee status of these children, or the procedures they have been granted access to. “Immigration authorities should stop playing games with people’s lives and immediately release all detained children and grant the UN refugee agency access to all detained refugees and asylum seekers,” said Human Rights Watch deputy Asia director, in a statement on 20 November.
Malaysian authorities have conducted numerous raids and immigration arrests since May 2020, placing all apprehended persons in already overcrowded detention facilities (for more on these raids, see our 3 May Malaysia update on this platform). During the summer, several detention facilities witnessed COVID-19 outbreaks, prompting the UN Special Rapporteur on the human rights of migrants to warn that raids and arrests of migrants were “undermining the effort to fight the pandemic in the country.” In particular, he noted that fear of arrest and detention may mean that “migrants might not come forward anymore for testing or access health services even when showing symptoms of the coronavirus.” Indeed, recent reports have highlighted that undocumented migrants, refugees, and stateless persons in Sabah Province have been evading Ministry of Health COVID-19 screening campaigns, out of fear that they will be detained and deported. Doctors in the state, which accounts for nearly half of all cases in the country, have also reported that non-nationals have delayed seeking treatment when they contract the virus, likely contributing to higher levels of infection--as well as higher death rates.
On 4 June, Malaysia recorded 277 COVID-19 cases—the highest daily figure recorded since the start of the outbreak. 270 of these cases involved foreigners detained at the Bukit Jalil Immigration Detention Depot, which has a reported capacity of 1,500 people.
Previously, on 25 May, the country’s Director General for Health Noor Hisham Abdullah announced that there were 172 confirmed cases of COVID-19, of which 159 were foreigners, including 112 cases in three of the country’s immigration detention facilities (in Sepang, Bukit Jalil, and Semenyih). Subsequently, Ministry of Health authorities announced that they would undertake measures to contain the outbreak at Bukit Jalil Immigration Detention Depot, including disinfecting the site, and ensuring that people housed there practice social distancing and wash their hands frequently.
According to one report, detainees who test positive are sent to one of three quarantine and treatment centres, including an agricultural exhibition space that state media has reported is "under heavy guard."
In total, there have been 608 confirmed cases of COVID-19 from immigration detention centres, including two that have recovered. Human rights groups and the Human Rights Commission of Malaysia have criticised the government’s round-up of migrants (including Rohingya refugees), its failure to erect a firewall between immigration control and healthcare services, as well as its continued policies of detention of foreigners. Preethi Bhardwaj, interim executive director of Amnesty International Malaysia told Al Jazeera: "[Detainees'] health and lives have been put at risk."
According to information submitted to the GDP by Kendra Rinas, the IOM’s Chief of Mission in Malaysia, all immigration detainees (believed by the IOM to number over 13,000 people) are now being tested for the virus, and on 26 May authorities ceased issuing new detention orders. These developments emerged following news of rapidly rising numbers of confirmed cases inside Malaysian immigration “depots.”
Despite the threat the pandemic poses to detained populations, Malaysian authorities have scaled up immigration arrests, carrying out raids in areas with large numbers of migrants and refugees (see 3 May update). On 21 May, the UN’s Special Rapporteur on the human rights of migrants, Felipe González Morales, criticised the country for its treatment of non-nationals during the crisis, pointing to the raids and arrests and warning, “In such a situation, migrants might not come forward anymore for testing, or access health services even when showing symptoms of the coronavirus.”
Malaysia is one of several countries - another notable case being South Africa (see our 26 May update on the country) - that have failed to put up “firewalls” between agencies during the crisis that would enable undocumented people to access services without risk of enforcement measures like arrest or detention, which risks exasperating the crisis.
As many have feared, cases of Covid-19 amongst the country’s immigration detainee population began to rise in the wake of these raids. On 25 May, the country’s Director General for Health Noor Hisham Abdullah announced 172 new cases – of which 159 were foreigners, including 112 cases in three of the country’s immigration detention facilities (in Sepang, Bukit Jalil, and Semenyih).
According to the IOM, deportations have continued throughout the pandemic. On 12 May, almost 400 Myanmar nationals were deported on charter flights – reportedly in an effort to free up additional space in detention facilities. (The previous day, for example, saw more than 1,300 non-nationals—including 98 children—arrested in a raid in Kuala Lumpur.) Rinas also adds that several embassies have been working with immigration authorities to expedite deportations in order to prevent lengthy stays in detention.
Refugees and undocumented migrant workers in Malaysia are being targeted as part of a purported anti-Covid-19 campaign, which has included mass arrests and raids across the country since the start of May. According to Al Jazeera, “There has been growing public anger in recent days over the presence of migrant foreigners, with some in Malaysia accusing them of spreading the coronavirus and being a burden on government resources.”
Malaysia has approximately two million registered foreign workers, however thousands more live and work in the country without proper documents. This is in part due to the fact that Malaysia does not recognise refugees and considers them to be undocumented migrants. The country is also notorious for terrible conditions in its immigration detention centres as well as its brutal penalties, including caning, for being in the country without authorisation. The Global Detention Project has documented some two dozen detention centres in the country, which are called “immigration depots.”
Rights groups, including Human Rights Watch and the Asia Pacific Refugee Rights Network (APRRN), reported that hundreds of migrants were taken into custody during May Day raids, including children. "Malaysian government does a U-turn on its earlier pledge not to arrest and detain undocumented migrants. Children as young as one year old have also been detained," Lilianne Fan, chairman of the Rohingya Working Group at APRRN, said in a statement. The group posted a video on Twitter reportedly showing long lines of migrants being led through the streets of Kuala Lumpur after a raid.
According to the BBC, “The raids took place in a part of the capital known to house foreigners. The UN has urged the Malaysian authorities to release children and vulnerable individuals from the detention camps where migrants are held. Phil Robertson of Human Rights Watch tweeted that the detentions risked worsening the pandemic in Malaysia, both in terms of potential outbreaks inside the camps but also by making undocumented people less likely to co-operate.”
According to The Guardian, “Those detained included young children and ethnic Rohingya refugees from Myanmar. Social media posts, including some by Malaysian politicians, have recently blamed Rohingya of committing crimes and accused them of dominating areas of the capital. The xenophobic campaigns have included activists having their names and photos circulated alongside inflammatory accusations, and have injected further fear into a community struggling for food and shelter through the pandemic lockdown. Police said the operation was aimed at preventing undocumented migrants from travelling to other areas amid movement curbs imposed to contain the spread of the virus outbreak, the state news agency Bernama reported.”
The day before the May Day raids, Home Minister Datuk Seri Hamzah Zainudin said that “Rohingya nationals who are holders of the UN High Commissioner for Refugees (UNHCR) card have no status, rights or basis to make any claims on the government.” According to a report in The Star, the Home Minister also said that anyone claiming to represent Rohingya in Malaysia would be considered illegal under the Registrar of Societies Act (RoS). He said, “The Home Ministry has made checks with the RoS and found no organisations under the name 'Rohingya' are registered in Malaysia. Any organisation that claims to represent the Rohingya ethnic group is illegal under the RoS Act, and legal action can be taken.”
In late February, some 16,000 people attended a religious gathering at a mosque on the outskirts of Kuala Lumpur. Among the attendees were large numbers of undocumented Rohingya refugees. This gathering proved to be a “hotspot” for Covid-19, with significant numbers of those in attendance developing symptoms. Seeking to stem the spread of the virus, the Malaysian government, together with UNHCR, sought to trace the refugees in attendance and ensure they were tested, and authorities such as the police commissioner in Sabah - a state which is home to large numbers of migrants, refugees, and stateless persons - encouraged undocumented persons who attended the event to come forward to be tested. Although the country’s Circular 10/2001 requires health care providers to report undocumented persons to the police, the country’s Defence Minister vowed that the government would not arrest anyone based on their immigration status who sought medical services in relation to Covid-19, and the Ministry of Health confirmed that Covid-19 treatment would be free for any foreigner displaying symptoms. Despite these assurances, some organisations such as MSF have noted that the country’s past heavy-handed treatment of migrants and refugees may leave many hesitant to seek assistance.
Aside from these steps, the Malaysian government appears to have adopted few measures to protect migrants and asylum seekers, such as those behind bars. The country’s immigration detention facilities are particularly notorious for their cramped, unsanitary conditions, but to date, no detainees have been released. Instead, it appears that authorities may be continuing to place people in detention. On 5 April, the country’s Maritime Enforcement Agency intercepted a boat carrying 200 Rohingya refugees. According to Amnesty International Malaysia, this group were placed in 14-day quarantine, and are expected to soon be moved into already over-crowded immigration detention facilities. Amnesty thus called on authorities to urgently provide alternative measures to detention - particularly for elderly detainees and those with underlying health issues - to take steps to prevent overcrowding, and to ensure the right to adequate health care.
Government Agencies
Ministry of Home Affairs, http://www.moha.gov.my/index.php/en/
Royal Malaysian Police Force, https://www.rmp.gov.my/
SUHAKAM - Human Rights Commission of Malaysia, http://www.suhakam.org.my/
International Organisations
International Labour Organization: Sub-Regional Office for East Asia, http://www.ilo.org/asia/countries/malaysia/lang--en/index.htm
International Organization for Migration (IOM) Malaysia Country Information, https://www.iom.int/countries/malaysia
UNHCR Malaysia Country Information, http://reporting.unhcr.org/node/2532#_ga=1.40865890.1574793458.1466088472
NGO & Research Institutions
Amnesty International Malaysia, http://www.aimalaysia.org/
Migrant CARE, http://migrantcare.net/#
National Human Rights Society (HAKAM), http://hakam.org.my/wp/
Suara Rakyat Malaysia (SUARAM), http://www.suaram.net/
Media
Bernama Malaysia National News Agency (state-run news agency), http://www.bernama.com/bernama/v5/index.php
Irrawaddy (regional information), http://www.irrawaddy.org/
Malay Mail, http://www.mmail.com.my/
Malaysia Kini, http://www.malaysiakini.com/
New Straits Times, http://www.nst.com.my/
The Star,http://www.thestar.com.my/
Utusan Malaysia (Malay), http://www.utusan.com.my/
