3.
DETENTION
AND ACCESS TO ASYLUM
“
Increasingly UNHCR faces barriers in Malaysia, Thailand and India.
They can no longer access our people in detention and get them released.
Our brothers and sisters become stuck for years and years. We need an
international platform for Rohingya and others to participate, which
could help UNHCR to break down the barriers put up by governments
and to seek our analysis and input.
HAFSAR TAMEESUDDIN
Hundreds of Rohingya are detained in immigration detention centres, prisons, juvenile detention centres and
other detention facilities in Malaysia, Thailand, India
and Bangladesh. UNHCR operates in all of these states,
although none are signatories to the 1951 Refugee Convention. UNHCR provides refugee status determination
and refugee cards that can provide some protection from
arrest or can help to secure release when Rohingya are
detained as irregular migrants. However, refugee status is
not formally recognised in any of these countries and as
such, Rohingya refugees do not have a legal protection
status. Over many years, Rohingya have been arrested
on immigration charges or on other minor charges. Once
they have served out their sentences, considered “illegal
immigrants” they are unable to secure release. Unrecognised as citizens of Myanmar, most are not deported
through formal channels either.12 As such many remain
in indefinite detention.
Prior to the COVID-19 outbreak in Malaysia, Rohingya
who were detained on immigration charges, were largely
able to obtain access to UNHCR, albeit with delays of
weeks or months. If they did not have UNHCR cards
already, they could secure release while their asylum
claims were processed, which would take approximately
six to nine months.13 Since 2018 however, UNHCR
have faced increasing barriers in accessing Rohingya
in detention.14 Additionally, as a direct response to
COVID-19, immigration sweeps took place during
Ramadan. Many Rohingya were arrested and detained.
New arrivals that have managed to disembark in Malaysia
have also been detained. UNHCR does not have access
to information about who or how many Rohingya are
The exception are three groups of Rohingya deported from India since 2018.
Information provided by Anayatullah.
14
Information provided by Hafsar Tameesuddin.
15
Information provided by RoHRIngya.
12
13
8
detained. It is a struggle to advocate for their release.
In Thailand, approximately 200 Rohingya are detained
and many have been for years. At least 38 are detained
at Songkhla detention centre. They do not have access
to UNHCR for refugee determination procedures and as
such no resettlement options are open to them. In both
Thailand and Malaysia, is unclear whether detainees who
have tested positive for COVID-19 have been separated
from other detainees. Additionally, the overcrowded
conditions in detention with limited access to hygiene
facilities have raised concerns about outbreaks within
detention centres.
In India, approximately 500 Rohingya are detained. Most
have been arrested on route in border areas such as West
Bengal, Assam and Manipur. RoHRIngya has identified
112 men, women and children in detention centres,
correctional facilities or juvenile detention centres across
India. Some have been detained since 2012. Three things
are required in order to secure release. First, the UNHCR
must provide documentation – either a Refugee Card
or an ‘Under Consideration Certificate’ – to establish
that the detainee is a person of concern to the Agency.
However, it is difficult for detainees to gain access
to UNHCR, in order to obtain such documentation.
Second, the court requires UNHCR to verify this status
before the court, however, UNHCR isn’t always able
to intervene in such cases. Sometimes, the court may
allow another organisation to take responsibility for the
detainee upon release. Third, it requires a lenient judge
with understanding and concern for refugee issues.15