COVID-19 IMPACTS ON IMMIGRATION DETENTION: GLOBAL RESPONSES THAILAND’S RESPONSE TO COVID-19, URBAN REFUGEES AND ASYLUM SEEKERS, AND IMMIGRATION DETENTION INTRODUCTION SOCIAL SECURITY RESPONSE TO COVID-19 Thailand is home to approximately 5,000 urban refugees and asylum seekers (collectively, refugees), with over 200 refugees detained in immigration detention centres.1 A rights-based assessment of the country’s social security response to the COVID-19 pandemic reveals the continued sidelining of the needs of refugees who experience marginalisation in Thai society. 2 The RTG’s social security response to the pandemic has not sufficiently included the needs of urban refugees. All foreigners, including refugees, can access free COVID-19 testing and treatment if they meet the RTG’s criteria.7 However, many refugees fear accessing testing and treatment due to financial reasons if they do not meet the RTG’s criteria, fear of being arrested, and lack of adequate information. 8 These challenges are consistent with the observations by the UN Committee on Economic, Social and Cultural Rights (CESCR) that refugees in Thailand “still face obstacles in accessing basic health care services”.9 Further, the RTG has not secured the underlying determinants of health for refugees, including the interrelated rights to work, adequate standard of living, housing, water, and sanitation.10 The advent of COVID-19 has done little to shift the RTG’s perception of refugees in Thailand. During the pandemic, the Royal Thai Government (RTG) has continued arresting and detaining refugees for immigration-related offences. Further, while some precautions have been implemented to prevent the risk of an outbreak in detention, these precautions fall short of human rights and public health standards. This is despite repeated advocacy from various human rights groups for the RTG to halt arrests of refugees, consider alternatives to detention for detained refugees, and improve conditions in detention facilities. COVID-19 INFECTIONS IN THAILAND The RTG has generally managed to contain local transmissions of the COVID-19 virus better than its neighbouring countries in Southeast Asia. At the time of writing (12 September 2020), the country has reported 3,461 cases. 3 UNHCR Thailand reported in June 2020 that there were 2 reported cases of COVID-19 amongst refugees.4 These numbers do not include the 65 detainees in Songkhla immigration detention centre who tested positive for COVID-19 in May 2020. 5 According to Human Rights Watch, these 65 detainees include 18 ethnic Rohingya women and children.6 ARRESTS Refugees continue to be arrested and detained under the Immigration Act B.E. 2522.11 These arrests have continued despite attempts at advocacy and interventions from UNHCR and NGOs. Further, the majority of refugees have not benefited from the RTG’s leniency in granting visa amnesties to foreigners whose visas expired from 26 March 2020, as these amnesties do not apply to refugees who already entered Thailand before January 2020.12 On the contrary, they are at a higher risk of arrest, as the immigration authorities have warned that there will be a crackdown for overstaying.13 1 These numbers are current as of 15 June 2020: UNHCR, Protection Working Group – COVID-19 Response Coordination Sub-group for Urban Asylum-seekers and Refugees, 15 June 2020, https://www.unhcr.org/th/wp-content/uploads/sites/91/2020/08/Urban-Dashboard_for_COVID-19-15062020.pdf. These numbers do not include refugees living in the nine temporary shelters along the Thai-Myanmar border. It also does not include groups of individuals who are unable to officially register with UNHCR Thailand, including ethnic Rohingya persons. 2 This is despite Thailand’s obligation under the International Covenant on Economic, Social and Cultural Rights (ICESCR) to take into special consideration the needs of the most vulnerable or marginalised, such as refugees. Committee on Economic, Social and Cultural Rights (CESCR), CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), https://www.refworld.org/pdfid/4538838d0.pdf. 3 Today, Thailand finds second Covid-19 infection after long absence, 11 September 2020, https://www.todayonline.com/world/thailand-finds-second-covid-19infection-after-long-absence. 4 UNHCR, Protection Working Group – COVID-19 Response Coordination Sub-group for Urban Asylum-seekers and Refugees, 15 June 2020, https://www.unhcr.org/ th/wp-content/uploads/sites/91/2020/08/Urban-Dashboard_for_COVID-19-15062020.pdf. 5 Human Rights Watch, Thailand Should Free Detained Migrants Amid Pandemic, 8 May 2020, https://www.hrw.org/news/2020/05/08/thailand-should-freedetained-migrants-amid-pandemic. 6 Ibid. 7 Daron Tan and Manachaya Yankittikul, A Looming Catastrophe: COVID-19, Urban Refugees, and the Right to Health in Thailand, 11 May 2020, https://rli.blogs.sas. ac.uk/2020/05/11/a-looming-catastrophe-covid-19-urban-refugees-and-the-right-to-health-in-thailand/. 8 UNHCR, COVID-19 Impact Assessment: Urban Refugees and Asylum-Seekers in Thailand, July 2020, https://www.unhcr.org/th/wp-content/uploads/ sites/91/2020/08/UNHCR-Thailand-Urban-COVID-19-Impact-Assessment_July-2020.pdf, at 16. 9 CESCR, Concluding observations on the combined initial and second periodic reports of Thailand, UN Doc. E/C.12/THA/CO/1-2, 19 June 2015, at para 29. 10 Daron Tan and Manachaya Yankittikul, A Looming Catastrophe: COVID-19, Urban Refugees, and the Right to Health in Thailand, 11 May 2020, https://rli.blogs.sas. ac.uk/2020/05/11/a-looming-catastrophe-covid-19-urban-refugees-and-the-right-to-health-in-thailand/. See also UNHCR, COVID-19 Impact Assessment: Urban Refugees and Asylum-Seekers in Thailand, July 2020, https://www.unhcr.org/th/wp-content/uploads/sites/91/2020/08/UNHCR-Thailand-Urban-COVID-19Impact-Assessment_July-2020.pdf, at 23 – 24. 11 Immigration Act B.E. 2522 (1979). An English translation is available at: https://web.krisdika.go.th/data/outsitedata/outsite21/file/Immigration_Act_B.E._2522.pdf. 12 James Morris and Son Nguyen, Stranded foreigners must get embassy letter, new visa or leave Thailand to avoid arrest by police, 14 September 2020, https://www. thaiexaminer.com/thai-news-foreigners/2020/07/13/stranded-foreigners-letter-from-embassies-or-leave-thailand-to-avoid-arrest/. 13 Ibid. idcoalition.org | westernsydney.edu.au/hadri 51