1 Introduction
The primary responsibility for refugee status determination (rsd) lies with states.1 Nevertheless, the United Nations High Commissioner for Refugees (unhcr) may conduct rsd under its mandate,2 usually in states that have not ratified the 1951 Convention3 and/or the 1967 Protocol,4 or in states parties that lack a fair and efficient national asylum system.5 Because effective refugee protection requires government action in tandem with unhcrâs own increasingly criticized rsd processes,6 unhcr has encouraged states to assume responsibility for the determination of refugee status.7 Indeed, over the last 20 years, unhcr has been involved in rsd transition processes in more than 30 states, most of them states parties.8 Instances of rsd transition from unhcr to non-signatory states remain rare, with the notable exception of Hong Kong as a non-signatory territory.9
Since the adoption of the 2016 New York Declaration for Refugees and Migrants (New York Declaration),10 the 2018 Global Compact on Refugees (gcr),11 and the establishment of the Global Refugee Forum (grf), we have nonetheless witnessed an increased intention of non-signatory states to assume responsibility for determining the status of individuals in need of protection. This has been expressed via voluntary pledges, made at global forums, to improve and strengthen national asylum systems, including through legislation.12 Thailand is a case in point, and the focus of this chapter.
Following its global commitments to develop a screening mechanism, Thailand, for the first time in history, enacted the 2019 âRegulation of the Office of the Prime Minister on the Screening of Aliens Who Enter into the Kingdom and Are Unable to Return to the Country of Origin BE 2562â13 (Regulation on the National Screening Mechanism (nsm)). This Regulation identifies persons in need of protection. Almost four years later, in March 2023, the government published the âNotification of the Protected Person Screening Committee on the Criteria, Procedures, and Conditions for Determining an Application for Protected Person Statusâ14 (Notification on the Eligibility Criteria) as a supplementary document in the Royal Gazette. The nsm was officially implemented in September 2023 and remains under development by the Thai government, with unhcr support.15 The establishment of a formal national screening mechanism marks a momentous step and makes Thailand a pioneer among non-signatory states in the Southeast Asian region.
This chapter takes as starting point these developments and seeks to examine the Thai domestic legislation governing the nsm â the Regulation on the nsm and the newly adopted Notification on the Eligibility Criteria â through the lens of international law. The aim is to determine whether Thailandâs crucial move in establishing the historic screening mechanism is in line with international standards, represents good practice among non-signatory states in the region and beyond, and is a true step forward for enhanced protection for refugees on the ground.
The following section provides an overview of the legal and policy landscape of refugee protection and caseloads in Thailand. Part 3 discusses the timeline and the turning point that led to the creation of the nsm. This is followed by a critical evaluation of the nsm against international law, notably international human rights law. Finally, Part 5 concludes that Thailandâs nsm as it is currently conceived falls short of international standards in terms of substantive rights and procedural guarantees. It further contends that while the fulfillment of global commitments by a non-signatory state like Thailand is to be applauded, robust and close monitoring is called for when evaluating success and impact on the lives of refugees and asylum seekers at the local level.
2 Thailand and Refugee Protection: A Tour dâHorizon
2.1 Legal Frameworks
At the international level, Thailand has not ratified the 1951 Convention or the 1967 Protocol.16 Nonetheless, the country is a party to eight out of nine core human rights treaties that are applicable to refugees and asylum seekers.17 Pertinent provisions include, among others, the prohibition of refoulement (article 3 cat,18 articles 6 and 7 iccpr),19 the protection against arbitrary expulsion (article 13 iccpr), the prohibition of arbitrary arrest and detention and treatment of detainees (articles 9 and 10 iccpr), and the principle of non-discrimination as well as the best interests of the child (articles 2 and 3 crc).20 In addition to the obligations under treaty law, Thailand, like other states, is also bound by the relevant rules of customary international law,21 notably the principle of non-refoulement.22
At the regional level, Thailand has affirmed the Asian-African Legal Consultative Organization (aalco)âs Bangkok Principles on the Status and Treatment of Refugees.23 This regional instrument contains several articles similar to the 1951 Convention and, to some extent, offers more expansive protection than the latter.24 However, in view of its non-binding character and the lack of political will, the Bangkok Principles have not carried strong persuasive force nor been incorporated in the national legislation of member states, including Thailand. Within the Association of Southeast Asian Nations (asean) framework, while the asean Human Rights Declaration 2012 explicitly recognizes the right to seek and receive asylum in another state, the provision further stipulates âin accordance with the laws of such State and applicable international agreements.â25 This raises ambiguity about the realization of such right in practice, since most asean states, including Thailand, are not party to the 1951 Convention and their domestic immigration laws are generally unfavorable to persons in need of international protection.26 Regarding children, the commendable asean Declaration on the Rights of Children in the Context of Migration was adopted in 2019. It acknowledges the need to enhance protection of all children in the context of migration, and recommends that asean states develop alternatives to child immigration detention.27
At the domestic level, Thailand lacks a specific law on refugee protection. The primary law applicable to refugees is the Immigration Act BE 2522 (1979) governing aliens in general. Under the Immigration Act, no distinction is made between those entering the country for the purpose of seeking asylum and other groups of immigrants. Accordingly, refugees and asylum seekers who enter and/or stay in Thailand without valid documents or visas are categorized as illegal immigrants and, in principle, are subject to deportation.28 While the 2019 inter-ministerial memorandum of understanding (MoU) on the Determination of Measures and Approaches Alternative to Detention of Children in Immigration Detention Centers is a welcome step toward ending the immigration detention of children, family separation and the exorbitant bail rate, among other issues, remain problematic.29
In a significant recent development, in 2022, Thailand promulgated the Act on the Prevention and Suppression of Torture and Enforced Disappearance BE 2565, which remarkably also endorses the principle of non-refoulement.30 The new law has the potential to make a positive impact on the lives of refugees in Thailand but, as is often the case, enforcement is key to effective protection, and remains to be seen.31 Parenthetically, the inclusion of the provision on non-refoulement in the Thai Anti-Torture and Enforced Disappearance Act illustrates the interplay between international refugee law and human rights law, and how universal refugee norms are transposed into the domestic legal sphere in non-signatory states.
2.2 Caseloads and Policy Responses
Thailand has been hosting forcibly displaced persons since the 1970s, and during this period it provided temporary refuge to the Indochinese from Vietnam, Cambodia, and Laos32 as well as the Burmese.33 Back then, an ad hoc screening procedure within the framework of the 1989 Comprehensive Plan of Action (cpa) was established to determine refugee status of the Indochinese,34 whereas Provincial Admission Boards were initiated to temporarily screen those fleeing from Myanmar for the purpose of admission into the camps near the ThaiâMyanmar border.35
On the basis of a Cooperation Agreement, Thailand has permitted unhcr to operate in the country since 1975 to provide assistance to various groups of people displaced by the Indochina war.36 Currently, unhcr has three offices in Thailand: one multi-country office in Bangkok, which has also covered Cambodia, Laos, and Vietnam since 2020, and two field offices in Mae Sot and Mae Hong Son.37
Today, Thailand remains the country of first asylum for a considerable number of individuals seeking protection. As of December 2023, Thailand hosts 90,801 Myanmar refugees in the nine temporary shelters on the ThaiâMyanmar border.38 Registration of this group is led by the Royal Thai Government Provincial Admission Board (rtg-pab) and since 2008 registration has only been open to exceptional serious protection and medical cases.39 The role of unhcr focuses primarily on protection and solutions, including identifying and referring cases to the rtg-pab in close consultation with the Ministry of Interior, while humanitarian services for basic needs are provided by ngos, given that Myanmar camp-based refugees are not allowed to move outside the camps.40
In the urban context, there are 5,213 urban refugees and asylum seekers from 47 countries, mainly Pakistan, Vietnam, Mali, and Iraq, residing in and around Bangkok.41 unhcr has played a pivotal role in providing protection to this group, not least conducting rsd. However, a registered or recognized status by unhcr does not formally guarantee protection for these individuals.
In addition, there are approximately 5,000 Rohingya, many of whom are victims of trafficking.42 As a policy and for reasons of national security, the Rohingya screened as victims of trafficking reside in shelters run by the Ministry of Social Development and Human Security with restricted freedom of movement and no right to work.43 Those screened out and considered to be illegal immigrants are incarcerated in the Immigration Detention Centres (idcs), often for prolonged periods.44 Other groups include North Koreans and 48 Uyghurs who had been detained at the idcs since March 2014.45
Since the 2021 military coup in Myanmar, those fleeing fighting represent a new caseload in Thailand. While the figure fluctuates due to the highly volatile situation, approximately 48,408 Myanmar individuals have crossed into Thailand to seek protection during several periods of movement between February 2021 and January 2024.46 They were sheltered in Temporary Safety Areas (tsas) under the control of the Royal Thai Army with limited access by humanitarian agencies, including unhcr.47 According to the governmentâs standard operating procedures, these newcomers will be treated separately from the existing Myanmar camp population in that they will be initially received at tsas and, if needed, relocated to holding areas organized by provincial authorities.48 In addition to this group, there are 30,000â50,000 persons who reside in urban areas outside tsas.49 Among these are political activists and professionals, such as doctors and nurses.50 At the time of writing, the Thai policy toward the latter group remains unclear.51
3 Participation in Global Forums on Refugees: A Turning Point
Despite not being a party to the international refugee instruments, Thailand has engaged with the international refugee regime in a number of ways. In addition to hosting unhcr in the country, Thailand has been a member of unhcrâs Executive Committee since 1979. The country has actively participated in the annual plenary sessions, and importantly used this platform to express its stance and commitments toward refugee protection. For example, in 2022, Thailand reaffirmed that it would not force âMyanmar people fleeing unrestâ to return to danger, and pledged to consider withdrawing its reservation to article 22 crc related to refugee children.52 In 2023, the country agreed to uphold the principle of non-refoulement enshrined in the Anti-Torture and Enforced Disappearance Act.53 From a legal perspective, such an involvement indicates Thailandâs influence on and cognizance of the adopted Executive Committee Conclusions.54
As previously mentioned, however, Thailand has long been reluctant to ratify the 1951 Convention or to establish its own national asylum systems. A turning point nevertheless came in September 2016 with the Leadersâ Summit on Refugees. At the summit, Thailand â the only asean state invited to attend â surprisingly pledged to develop a screening mechanism to âdistinguish those with genuine protection needs from economic migrants.â55 It was suggested that Thailand make such a commitment because the then ruling junta saw the forum as an opportunity to restore its international legitimacy and global media attention following the public condemnation over the countryâs deportation of Uyghurs.56 Not long after, in January 2017, Cabinet Resolution 10/01 BE 2560 â setting up a committee to develop policies concerning the screening mechanism â was adopted.57
In December 2018, Thailand joined the international community in adopting the gcr and its counterpart, the Global Compact for Migration. At the 2019 grf, Thailand further pledged to âenhance capacity-building of officers involved in implementing the national screening system to differentiate persons in need of international protection from those seeking economic opportunities.â58 In parallel, at home, after years of concerted efforts, Thailandâs global commitments came to fruition: on December 24, 2019, the Regulation on the nsm was approved by the Thai cabinet, and the Notification on Eligibility Criteria for individuals seeking protection under the nsm was adopted on March 27, 2023. On the international plane, Thailand continues to actively engage in global forums on refugees. At the latest grf, the country committed to strengthen the nsm by, inter alia, investing in data and interpretation systems, developing protection and referral frameworks, conferring appropriate legal status to the âProtected Person,â and cooperating with partner countries, unhcr and the Asylum Capacity Support Group, as well as by improving the use of alternatives to detention.59
Thailandâs participation in global forums on refugees from 2016 onwards represents a watershed moment in the history of refugee protection in the country. It is against this backdrop that the nsm was established, turning Thailandâs global commitments into local implementation. We will now examine this mechanism in closer detail.
4 Thailandâs National Screening Mechanism: A Legal Examination
Bearing in mind that the nsmâs implementation is â at the time of writing â under development by the Thai government, with unhcr technical support and advocacy,60 this section scrutinizes key elements of Thai legislation through the lens of international law to assess its compliance with the relevant international standards applicable to asylum procedures.61
The nsm Regulation consists of 30 clauses divided into five chapters: i) Protected Person Screening Committee; ii) Screening of Protected Persons; iii) Arrangements for Protected Persons; iv) Evaluation and Review; and v) Transitory Provision. Although the Regulation does not provide substantive eligibility criteria for determining the status of âProtected Person,â it envisages and confers power on the Committee to lay down criteria, procedures, and conditions for status determination.62 Pursuant to this, the Notification on the Eligibility Criteria was subsequently issued and entered into force in September 2023. The Notification consists of 10 sections detailing the criteria, procedures, and conditions for assessing a request to be a Protected Person as well as an application for Protected Person status. To examine and understand how the nsm operates, the two instruments must thus be read in tandem.
Before proceeding to a detailed analysis, three preliminary observations should be shared. First, the nsm was established by Regulation, which is the lowest form in the hierarchy of Thai laws. This means that the Regulation is subordinated to the 1979 Immigration Act as the primary law governing aliens generally, as seen in several clauses of the Regulation where the applicability of immigration law is referred to. Second, although the Regulation was enacted for the purpose of screening those in need of international protection, the term ârefugeeâ or âasylum seekerâ is not mentioned anywhere. Instead, the Regulation uses âProtected Personâ and âPerson under Screening.â Such deliberate avoidance emphasizes the long-standing position of Thailand of preventing any formal affiliation with the international refugee instruments to which it has not acceded.
Third, there are concerns with the composition of the Screening Committee. The Committee is comprised of 12 members from different government agencies â with the Commissioner-General or Deputy Commissioner-General of the Royal Thai Police as the Chairperson â and no more than four experts, appointed by the Commissioner-General of the Royal Thai Police.63 The disproportionate number of expert members compared with ex-officio members raises concern over the exercise of the Committeeâs discretion when it comes to balancing national security and the rights of individuals.64 This concern cannot be overstated, particularly given that several clauses governing the nsm contain the phrase âas determined by the Committeeâ and allow exceptions on the grounds of ânational securityâ â the vague term subjected to interpretation by the Committee.
4.1 The Prohibition of Refoulement
The principle of non-refoulement is at the heart of the international protection of refugees. This cardinal principle is guaranteed in article 33 of the 1951 Convention. Further, as mentioned earlier, it is also endorsed either explicitly or implicitly in the human rights treaties and is a well-established norm of customary international law.
Examining the Thai legislation, it is commended that the prohibition of refoulement is recognized in the Regulation for both those seeking protection and those granted Protected Person status.65 Such protection against forced return is, however, not absolute and may be refused where ânational security is threatened.â While the exception on the grounds of national security can be invoked, like in article 33(2) of the 1951 Convention, it should be noted that, as with any exception to a principle, a carve-out for ânational securityâ must be interpreted restrictively, specifically when fundamental rights of individuals are at stake such as in this case, and its threshold remains relatively high, mainly involving terrorism, espionage, or other related activities aimed at overthrowing the countryâs institutions.66 Moreover, in view of the absolute characteristic of the principle of non-refoulement in the human rights treaties which Thailand has ratified as well as Section 13 of the Thai Anti-Torture and Enforced Disappearance Act, due regard must be given to the broadened scope of protection against refoulement when implementing the relevant provisions.
4.2 The Right to Seek Asylum
The right to seek and to enjoy asylum is enshrined in article 14 of the udhr,67 which Thailand has affirmed. Although the udhr is a non-binding instrument, arguably, article 14 has acquired the status of customary international law.68 While the right to seek asylum does not warrant a substantive right to be granted asylum, for to grant or reject asylum remains a sovereign right of states,69 it does require a procedural right â the right to an asylum procedure.70 This right imposes a corresponding obligation on states to grant access to status determination procedures without discrimination.71 Access to a fair and efficient asylum procedure is further reinforced by the principle of non-refoulement, since to comply with the obligation of non-refoulement, states are obliged to assess an individualâs asylum claim in order to avoid sending him/her back to persecution.72
The importance of ensuring access for all persons seeking international protection to determination procedures has additionally been reiterated in other instruments, namely the unhcr Executive Committee Conclusions73 and the ila Declaration on International Minimum Standards for Refugee Procedures.74 In essence, everyone seeking international protection should have access to fair and efficient procedures for the determination of refugee status or other mechanisms, and access to the procedures should be granted without discrimination on the grounds of racial or ethnic origin, status, or country of origin, among others.
In the domestic context, attention should be drawn to Section 2 of the Notification, which prescribes that an alien eligible to submit a request to be Protected Person shall not be: aliens whom the Ministry of Interior has specific measures to deal with,75 or migrant workers from neighboring countries, namely Myanmar, Laos, Cambodia, and Vietnam.76 Whereas the former does not specify the category of aliens, considering the Thai policy responses to different refugee caseloads, it is understood that the provision excludes the Myanmar camp population.
Examining these clauses that automatically exclude some groups of individuals from accessing to the nsm, the analyses are as follows. First, the exclusionary clauses, acting as a legal hurdle, are in flagrant violation of the fundamental right to seek asylum which guarantees access for everyone to an asylum procedure without discrimination. By arbitrarily denying some categories of persons access to the nsm, Thailand, in turn, risks violating its obligation of non-refoulement under international law and its own domestic law.
Second, such exclusionary clauses also contravene the principle of equality before the law in article 26 of the iccpr. While the right to seek asylum is not recognized in the iccpr, the Human Rights Committee (HRC) has made clear that the application of the principle of non-discrimination contained in article 26 is not limited to the rights provided for in the Covenant.77 Rather, article 26 in itself provides an autonomous protection, which âprohibits discrimination in law or in fact in any field regulated and protected by public authorities.â78 Therefore, âwhen legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory.â79 Based on this, the Thai provisions that exclude some individuals from accessing the nsm on account of their race, national origin, migrant status, or any âother statusâ are not in line with article 26 of the iccpr.
Finally, it should also be mentioned that denying outright access to the nsm to some individuals based solely on their ethnicity or migrant status appears to discard the concept of refugee sur place, which acknowledges that a person may become a refugee after he/she has left his/her country of origin due to circumstances arising in the country of origin during his/her absence, or as a result of his/her own actions while in the country of residence.80
4.3 Non-penalization Due to Illegal Entry or Stay
Since refugees presumably flee their country of origin from persecution that is committed or condoned by their home state authorities, they are unlikely to comply with the requirements for legal entry. Based on this rationale, article 31 of the 1951 Convention exempts, under some preconditions, refugees from penalties on account of their illegal entry or presence. The protection from penalties is a right exclusively guaranteed in the 1951 Convention, although there has been a debate about non-penalization being an emerging general principle of law.81
Where Thai legislation is concerned, the Regulation only warrants protection from deportation, but is mute on other penalties, notably arrest and detention.82 Even if persons pending status determination are entitled to the issue of identity documents,83 their lawful stay or legal status is not recognized. Furthermore, the equivocal wording which stipulates that subject to immigration law, the authorities âmayâ allow Persons under Screening to stay at a place âas deemed appropriate,â84 leaves wide discretion to the authorities and fails to categorically rule out detention. This is further exacerbated by the subordinate status of the Regulation to the Immigration Act. Without an explicit provision exempting penalization on account of illegal entry or stay, refugees and asylum seekers who enter and/or stay in Thailand illegally remain subject to arrest, detention, and prosecution under the Immigration Act even before undergoing the nsm process.85 In fact, as per current practice, to be eligible to apply to the nsm, persons have to be âirregularly presentâ: either they must have previously been arrested and released on bail, or must submit themselves for arrest and prosecution. This evidently discourages most asylum seekers from coming forward to seek protection under the nsm.
Related to this, and crucially, even though the Thai Immigration Act authorizes detention in this case, Thailand is under the obligation of article 9 iccpr to ensure that detention is not arbitrary, that is it must be justified as âreasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.â86 Apart from the prohibition of arbitrary detention, Thailand is also bound by article 10(1) iccpr, which requires that all persons deprived of their liberty shall be treated with humanity and with respect for human dignity.
4.4 Who Qualifies as âProtected Personâ?
The international definition of refugee is provided in article 1A(2) of the 1951 Convention. As pointed out, Thai law does not accept the term ârefugee,â but has in lieu adopted the new label âProtected Person.â The Regulation defines âProtected Personâ as âan alien who enters into or resides in the Kingdom and is unable or unwilling to return to his/her country of origin since there is a reasonable ground to believe that he/she would face harm from persecution as determined by the Committee, and is granted status as a Protected Person under this Regulation.â87
Examining this provision, it is noteworthy how similar the definition of âProtected Personâ is to that of ârefugee.â It even incorporates the core element of persecution. That said, the Thai definition does not contain reasons for persecution, but rather refers to the phrase âas determined by the Committee.â Arguably, the absence of the nexus requirement can be double edged. The apparent drawback is, of course, that it leaves the definition ambiguous subject to broad discretion of the Committee, which could pose a risk of restrictive interpretation. But, at the same time, it has the advantage of making the definition more flexible, which could in effect encompass persons fleeing generalized violence or situations of armed conflict. This is particularly meaningful for the new arrivals fleeing fighting in Myanmar and seeking protection in Thailand, assuming that they can access the NSM. Having analyzed this, the Committee later issued the Directive on a Reasonable Ground to Believe that the Individual Would Face Harm from Persecution (adopted July 11, 2023) to include the five grounds of persecution as an additional element.
The Notification further offers guidance when assessing âa reasonable ground to believe that the applicant would face harm from persecutionâ by requiring that the relevant facts and other circumstances in the country of origin, such as a consistent pattern of serious, gross, or widespread human rights violations or events seriously disturbing public order in either part or the whole of the country of origin, be taken into consideration.88 It should be observed that the list of objective elements provided in the provision is non-exhaustive, and serves merely as examples of factors to be taken into consideration when determining âpersecution.â In other words, it would be wrong to infer that persecution is confined only to the listed situations. The notion of âpersecutionâ itself hence remains to be determined by the Committee. In this regard, the Directive provides useful interpretive guidance: it elaborates and adopts the widely accepted meaning of persecution in international law understood as comprising a threat to life or freedom, or other serious violations of human rights, among others.89
Finally, on the subjective element stipulated in the Notification:90 while it is welcomed that the applicantâs personal circumstances are to be taken into account when determining his/her application for Protected Person status, there are concerns about how the applicantâs political circumstances91 would be used by the Committee. Besides, other factors, namely national security, and âany other information, documents or evidence as determined by the Committeeâ92 obviously raise questions about the objectivity and predictability of the criteria.
4.5 The Right to an Effective Remedy
The right to an effective remedy is endorsed in article 16(1) of the 1951 Convention. It guarantees a refugee free access to the courts, which presumably includes for the purposes of reviewing any rejection of refugee status by asylum seekers.93 In the realm of human rights law, although the HRC does not accept that procedural standards of the right to a fair trial (article 14 iccpr) apply to rsd procedures,94 it views rsd as intrinsically related to refoulement or expulsion and, as a result, governed by human rights standards concerning due process.95 According to the hrc, the legal bases for these procedural standards are primarily found in article 13 of the ICCPR (specific procedural guarantees governing expulsion), article 2(3), coupled with articles 7, 6 of the ICCPR (the right to an effective remedy, combined with the substantive provisions triggering protection against refoulement), or in a combination of both.96
Leaving aside the unclear position on the legal bases for due process guarantees in asylum procedures, what is evident is that such procedural safeguards, including the right to appeal against first-instance negative decisions, are firmly guaranteed in the iccpr. Beyond treaty law, the right to appeal or review to an independent body in rsd procedure is further affirmed by soft law standards, such as the unhcr Executive Committee Conclusion No 8 (1977) (para (e)(vi)), the unhcr Handbook on Procedures,97 and the ila Declaration.98
Looking at the domestic provisions, while appeal is warranted at the admissibility stage where a request to be a Protected Person is dismissed by the authorities,99 it is alarming that the right to appeal on the merits of the claim is precluded.100 Appeal or review against other adverse decisions made under the nsm either internally to the Committee or externally to a court of law is also barred.101 This includes where the status of Person under Screening or of Protected Person is revoked by the Committee102 and where Protected Person status is denied on the grounds of national security, despite all criteria being met.103 While Clause 24 of the Regulation allows aliens whose status is rejected or revoked to âresubmit another request to the Committee for reconsideration,â this can by no means be a substitute for the right to appeal. Moreover, the remedial action provided for in Clause 24 is contingent upon vague and subjective conditions: âif there is information or fact as prescribed by the Committee.â
Within this ambit, Clause 18 para 2 deserves a mention. It talks about abandonment of requests: if the alien fails to file an application for Protected Person status within 60 days after the notification date, the alien shall be deemed to have abandoned the request and legal action pursuant to immigration and other relevant laws shall be taken against him/her. As one of the main guarantees ensured by the right to an effective remedy, non-fulfillment of formal requirements, including late submission of an asylum request, cannot lead to a request being excluded from examination of the merits of the claim.104 The same also finds support in the unhcr Executive Committee Conclusion No 15 (1979) (para (i)) and in a Guide to International Refugee Protection and Building State Asylum Systems.105
4.6 Rejecting Protected Person Status on the Grounds of National Security
Under Thai legislation, despite having satisfied all the criteria and conditions set forth in Section 5 of the Notification, the Person under Screening may still be denied Protected Person status if the Committee considers that granting the status to the alien may threaten national security (Section 9 para 1). The Committeeâs decision shall be final and be treated as undisclosable information pursuant to article 15(1) and (2) of the Official Information Act BE 2540106 (Section 9 para 2).
The provision gives broad discretionary powers to the Committee to deny the applicant Protected Person status even if he/she meets all the criteria on the grounds of the ill-defined term ânational security.â What is more, as discussed, the right to appeal against such negative decision and access to information, including the reasons for rejection, is precluded. This clearly raises issues of the transparency and conformity of the Thai screening process to international standards. The invocation of Section 9 should not be underestimated, particularly when looking at the drafting history of the Regulation, which suggests that persons with âspecific national security concernsâ in the eyes of the Thai government could include persons fleeing fighting from Myanmar, Rohingya, Uyghurs, and North Koreans.107 Concerning those fleeing generalized violence from Myanmar, assuming that they could access the nsm and while they may be eligible to Protected Person status based on the flexible definition in Clause 3 of the Regulation as analyzed above, these individuals could regrettably be rejected the status by virtue of Section 9.
4.7 Durable Solutions and Rights Accorded to Protected Person Status
Finally, Clause 25(2) of the Regulation provides for voluntary repatriation and resettlement â the solutions already available to those recognized as refugees by unhcr in Thailand. What is novel is Clause 25(3) which for the first time paves the way for the possibility of local integration. It stipulates that when an alien is granted Protected Person status, the relevant agencies shall authorize the Protected Person âto stay in the Kingdom on an exceptional basis or temporarily, and refer the case for further action in accordance with immigration law, provided that the screening outcome under the Regulation is taken into consideration.â
As can be seen, the provision is ambiguous and demonstrates that even when granted Protected Person status and authorized to stay in Thailand, the legal status of these individuals remains volatile and, critically, may still be subject to immigration law. Such provision not only appears incompatible with the international notion of local integration,108 but also shows that the nsm was designed to continue a policy of temporary refuge, making the Thai government responsible for status screening, in exchange for eventual resettlement by third countries.109 Certainly, Thai law offers no prospect of naturalization. The way in which the provision on local integration is formulated unavoidably raises doubts about the viability of this solution in practice.
On the accompanying rights to individuals granted Protected Person status, they are meagre. Only the right to education and access to healthcare are explicitly guaranteed (Clause 25(4)). It is strongly urged that other substantive rights, notably the right to legal recognition and the right to work, be secured.
5 Conclusion
The establishment of the national screening mechanism to identify persons in need of protection by Thailand as a non-signatory state is undoubtedly a milestone in the history of refugee protection â not only in the country but also the region.
On the surface, the pioneering case of Thailand appears to be a success story deserving applause, for the country did fulfill its global commitments. But an in-depth legal analysis reveals that several provisions of the domestic legislation governing the nsm are not in line with the relevant international standards in terms of both substantive rights and procedural guarantees. In light of the findings, it would not be difficult for one to perceive the Thai screening mechanism more as a deterrent than a protection tool and to call into question whether these new developments truly contribute to better protection for refugees and asylum seekers. Drawing on insights from the case of Thailand, it is further argued that the fulfillment of pledges at the global level does not necessarily mean better protection for refugees at the local level, but can regrettably be a mere mirage of enhanced protection in the absence of rigorous monitoring.
That said, moving forward, it is never too late for Thailand to put things right and set a good example to other states, not least non-signatory states in Southeast Asia that are considering following in Thailandâs footsteps. The nsm was only launched in September 2023 and currently runs in parallel with unhcr rsd procedure. Its implementation remains under development by the Thai government, with engagement by relevant stakeholders, including unhcr and civil society organizations to ensure the required procedural standards.
While it would be premature to predict for certain the future direction and long-term impact of Thailandâs nsm, much can be done now to improve the rights of these vulnerable individuals on the ground. Recognizing legal status of persons seeking protection under the nsm and guaranteeing their right to an independent appeal or review would be a good start. This is an opportunity for Thailand to prove that its global achievements are not just an illusion, but a genuine reflection of meaningful progress and enhanced protection for refugees in the country.
UNHCR, âNote on Determination of Refugee Status under International Instrumentsâ, EC/SCP/5 (August 24, 1977) para 7; Executive Committee of the High Commissionerâs Programme, âConclusion No 81 (XLVIII) on General Conclusion on International Protectionâ (1997) para (d); UNGA Res 57/187 (2003)
Statute of the Office of the United Nations High Commissioner for Refugees A/RES/428(v) (December 14, 1950)Â para 8.
Convention relating to the Status of Refugees (adopted July 28, 1951, entered into force April 22, 1954).
Protocol relating to the Status of Refugees (adopted January 31, 1967, entered into force October 4, 1967).
UNHCR, âRefugee Status Determinationâ EC/67/SC/CPR.12 (2016) para 2.
See Michael Alexander, âRefugee Status Determination by UNHCRâ (1999) 11(2) International Journal of Refugee Law 251; Michael Kagan, âThe Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determinationâ (2006) 18(1) International Journal of Refugee Law 1; Martin Jones, âRefugee Status Determination: Three Challengesâ (2009) 32 Forced Migration Review 53.
Executive Committee of the High Commissionerâs Programme, âConclusion No 8 (XXVIII) on Determination of Refugee Statusâ (1977) para (d); Executive Committee of the High Commissionerâs Programme, âConclusion No 11 (XXIX) Generalâ (1978) para (i); UNHCR, âRefugee Status Determinationâ EC/67/SC/CPR.12 (2016) para 14.
For the list of countries, see UNHCR, âRefugee Status Determinationâ EC/67/SC/CPR.12 (2016) para 14; Wilbert van Hövell and others, âProviding for Protection: Assisting States with the Assumption of Responsibility for Refugee Status Determination: A Preliminary Reviewâ (2014) UNHCR Policy Development and Evaluation Service (PDES) PDES/2014/01, 23â24, footnote 43; Caroline Nalule and Derya Ozkul, âExploring RSD Handover from UNHCR to Statesâ (2020) 65 Forced Migration Review 27, footnote 1.
See Rachel Li, Isaac Shaffer and Lynette Nam, âHong Kongâs Unified Screening Mechanism: Form over Substanceâ (2021) 67 Forced Migration Review 48.
UNGA, New York Declaration for Refugees and Migrants,
Global Compact on Refugees, as contained in A/73/12 (Part II) (December 17, 2018)
See UNHCR, âPledges and Contributionsâ <https://globalcompactrefugees.org/pledges-contributions> accessed March 11, 2024.
Regulation of the Office of the Prime Minister on the Screening of Aliens Who Enter into the Kingdom and Are Unable to Return to the Country of Origin BE 2562 (enacted December 25, 2019) Royal Gazette No 136, Special Section 314.
Notification of the Protected Person Screening Committee on the Criteria, Procedures, and Conditions for Determining an Application for Protected Person Status (adopted March 27, 2023 (BE 2566)). At the time of writing, the Notification is available only in Thai. All the provisions discussed in the analysis are translated by the author.
UNHCR, âUNHCR Multi-Country Office Thailand Operational Factsheetâ (December 31, 2023) <https://reporting.unhcr.org/thailand-multi-country-office-operational-factsheet-7579> accessed March 14, 2024.
Reasons for non-accession include the fear that accession would restrict national sovereignty and security, and that it would oblige Thailand to accept an unlimited number of refugees for long-term settlement. See Vitit Muntarbhorn, The Status of Refugees in Asia (Oxford Clarendon Press 1992) 33, 132.
This includes the ICCPR, ICESCR, CAT, CRC, CEDAW, ICERD, CRPD, and ICPPED.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted December 10, 1984, entered into force June 26, 1987).
International Covenant on Civil and Political Rights (adopted December 16, 1966, entered into force March 23, 1976).
Convention on the Rights of the Child (adopted November 20, 1989, entered into force September 2, 1990).
See Hélène Lambert, âCustomary Refugee Lawâ in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (OUP 2021).
Declaration of States Parties to the 1951 Convention and/or Its 1967 Protocol relating to the Status of Refugees, HCR/MMSP/2001/09 (2002), Preambular para 4; Elihu Lauterpacht and Daniel Bethlehem, âThe Scope and Content of the Principle of Non-Refoulement: Opinionâ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law: UNHCRâs Global Consultations on International Protection (CUP 2003); Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (4th edn, OUP 2021) 300â06; Vincent Chetail, International Migration Law (OUP 2019) 119â24.
AALCOâs 1966 Bangkok Principles on Status and Treatment of Refugees (adopted June 24, 2001). See also chapter 4.
For example, art I on the refugee definition, III(2) on temporary asylum, VI on the right to return, and IX on the right to compensation; See also Susan Kneebone, âASEAN and the Conceptualization of Refugee Protection in Southeastern Asian Statesâ in Ademola Abass and Francesca Ippolito (eds), Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (Ashgate Publishing 2014) 313â18.
ASEAN Human Rights Declaration and the Phnom Penh Statement on the Adoption of the ASEAN Human Rights Declaration (adopted November 18, 2012) Principle 16.
Vitit Muntarbhorn, âRegional Refugee Regimes: Southeast Asiaâ in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (OUP 2021) 429; Jittawadee Chotinukul, âAssociation of Southeast Asian Nationsâ in Vincent Chetail (ed), Elgar Concise Encyclopedia of Migration and Asylum Law (Edward Elgar Publishing, forthcoming).
ASEAN Declaration on the Rights of Children in the Context of Migration (adopted November 2, 2019) paras 3, 9.
Immigration Act of Thailand BE 2522 (February 24, 1979) s 54.
See Asia Pacific Refugee Rights Network and others, âJoint Statement on the Signing of the Memorandum of Understanding on the Determination of Measures and Approaches Alternative to Detention of Children in Immigration Detention Centersâ (January 21, 2019); International Detention Coalition, âItâs Been 3 Years Since the Signing of the ATD-MoU in Thailand: Where Are We Now?â (IDC, March 31, 2022) <https://idcoalition.org/its-been-3-years-since-the-signing-of-the-atd-mou-in-thailand-where-are-we-now/> accessed March 19, 2024.
The Act on the Prevention and Suppression of Torture and Enforced Disappearance BE 2565 (enacted October 24, 2022, entered into force February 22, 2023) s 13.
Intriguingly, the Act does not contain a provision on punishment for the violation of s 13.
See further Arthur C Helton, âAsylum and Refugee Protection in Thailandâ (1989) 1(1) International Journal of Refugee Law 20.
See further Vitit Muntarbhorn, âRefugee Law and Practice in the Asia and Pacific Region: Thailand as a Case Studyâ (2004) UNHCR Research Paper 6â9.
UNGA, âDeclaration and Comprehensive Plan of Action of the International Conference on Indo-Chinese Refugees, Report of the Secretary-Generalâ
Muntarbhorn (n 33) 6â7.
Agreement between the United Nations High Commissioner for Refugees and the Government of the Kingdom of Thailand (signed December 22, 1975).
UNHCR, âUNHCR in Thailandâ <www.unhcr.org/th/en/unhcr-in-thailand> accessed March 22, 2024.
UNHCR (n 15).
ibid.
ibid.
ibid; UNHCR, âAnnual Results Report 2022: Thailand Multi Countryâ (May 3, 2023) 10, 12 <https://reporting.unhcr.org/sites/default/files/2023-06/Asia%20-%20Thailand%20Multi%20Country.pdf> accessed March 15, 2024; Parliamentary Committee on Legal Affairs, Justice and Human Rights, âStudy Report on Problems and Sustainable Solutions for Irregular Migrationâ (June 20, 2024) 10, 61.
Parliamentary Committee on Legal Affairs, Justice and Human Rights (n 41) 10, 61.
UNHCR, âSubmission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rightsâ Compilation Report Universal Periodic Review: 3rd Cycle, 39th Session: Thailandâ (2021) 2.
ibid.
Parliamentary Committee on Legal Affairs, Justice and Human Rights (n 41) 61.
Thailand Inter-Agency Sector Working Group, â2024 Refugee Preparedness and Response Plan: ThaiâMyanmar Borderâ (2024) 4 <https://reporting.unhcr.org/thailand-myanmar-border-refugee-preparedness-and-response-plan> accessed March 15, 2024.
ibid 5; UNHCR (n 15).
Thailand Inter-Agency Sector Working Group (n 46) 5, 15.
Parliamentary Committee on National Security, Border Affairs, National Strategy and National Reform, âReport on Problems and Solutions for Persons Fleeing Fighting from Myanmar and Persons Fleeing Civil Unrest from Myanmarâ (June 21, 2024) 11â12.
ibid.
ibid.
âStatement by Delegation of Thailandâ 73rd Session of the Executive Committee of the High Commissionerâs Programme (October 10â14, 2022).
âStatement by Delegation of Thailandâ 74th Session of the Executive Committee of the High Commissionerâs Programme (October 9â13, 2023).
See also Maja Janmyr, âThe 1951 Refugee Convention and Non-Signatory States: Charting a Research Agendaâ (2021) 33(2) International Journal of Refugee Law 188, 208â09; Guy S Goodwin Gill, âThe Office of the United Nations High Commissioner for Refugees and the Sources of International Refugee Lawâ (2020) 69(1) International and Comparative Law Quarterly 1, 8â9.
âSummary Overview Document Leadersâ Summit on Refugeesâ (2016) <https://refugeesmigrants.un.org/sites/default/files/public_summary_document_refugee_summit_final_11-11-2016.pdf> accessed March 11, 2024.
Bhanubhatra Jittiang, âPolicy Entrepreneurship and the Drafting of Refugee Law in a Non-Signatory Country: The Case of Thailandâs National Screening Mechanismâ (2022) 35(4) Journal of Refugee Studies 1492, 1502.
Cabinet Resolution 10/01 BE 2560 (January 10, 2017).
UNHCR, âPledges and Contributions: Government of Thailand, submitted December 12, 2019â <https://globalcompactrefugees.org/pledges-contributions> accessed March 24,2024.
âStatement by Thailandâ Global Refugee Forum 2023 (December 14, 2023); UNHCR, âPledges and Contributions: Government of Thailand, submitted December 21, 2023â <https://globalcompactrefugees.org/pledges-contributions> accessed March 25, 2024.
Including providing training on interviewing techniques, the use of COI, and assessment drafting.
For early analysis, see Jittawadee Chotinukul, âThailand and the National Screening Mechanism: A Step Forward for Refugee Protection?â (2020) Global Migration Research Paper No 25, Global Migration Centre.
cls 9(1) and 20 para 1.
cl 5.
Similar concern is also expressed by the National Human Rights Commission of Thailand. Its recommendation to increase six more expert members in the Committee has, however, been discarded. See âSummary Report by the Royal Thai Policeâ (October 12, 2023) <https://resolution.soc.go.th/PDF_UPLOAD/2567/P_410171_6.pdf> accessed April 9, 2024; âNews on the Cabinet Meetingsâ (January 2, 2024) <www.thaigov.go.th/news/contents/details/76940> accessed April 9, 2024.
cls 15 and 25(1) respectively.
Chetail (n 22) 189.
Universal Declaration of Human Rights, GA Res 217A (III),
Subrata Roy Chowdhurry, âA Response to the Refugee Problems in Post Cold War Era: Some Existing and Emerging Norms of International Lawâ (1995) 7(1) International Journal of Refugee Law 100, 105â06; Rainer Hofmann and Tillmann Löhr, âIntroduction to Chapter V: Requirements for Refugee Determination Proceduresâ in A Zimmermann (ed), J Dörschner and F Machts (assistant eds), The 1951 Convention relating to the Status of Refugees and its 1967 Protocol: A Commentary (OUP 2011) 1088.
Declaration on Territorial Asylum, A/RES/2312(XXII) (December 14, 1967) art 1(1); Alice Edwards, âHuman Rights, Refugees, and the Right to âEnjoyâ Asylumâ (2005) 17(2) International Journal of Refugee Law 293, 300.
Thomas Gammeltoft-Hansen and Hans Gammeltoft-Hansen, âThe Right to Seek â Revisited. On the
ibid; MarÃa-Teresa Gil-Bazo and Elspeth Guild, âThe Right to Asylumâ in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (OUP 2021) 876â77.
Gammeltoft-Hansen and Gammeltoft-Hansen (n 70) 446â47; Nikolas Feith Tan and Jens Vedsted-Hansen, âCatalogue of International and Regional Legal Standards: Refugee and Human Rights Law Standards Applicable to Asylum Governanceâ (2021) ASIL Global Asylum Governance and the European Unionâs Role, 16â17.
For example, Executive Committee of the High Commissionerâs Programme, âConclusion No 74 (XLV) Generalâ (1994) para (i); Executive Committee of the High Commissionerâs Programme, âConclusion No 82 (XLVIII) Conclusion on Safeguarding Asylumâ (1997) para (d)(iii); Executive Committee of the High Commissionerâs Programme, âConclusion No 99 (LV) Generalâ (2004) para (l).
ILA, Resolution 6/2002 on Refugee Procedures (Declaration on International Minimum Standards for Refugee Procedures) (2002) paras 1, 2.
s 2(2).
s 2(3).
HRC, âGeneral Comment No 18: Non-Discriminationâ (1989) para 12.
ibid.
ibid.
See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1979, reissued 2019) paras 94â96. The concept is also recognized in art I(3) of the Bangkok Principles.
Cathryn Costello and Yulia Ioffe, âNon-Penalization and Non-Criminalizationâ in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (OUP 2021) 929â32.
cl 15.
cl 19 para 1.
cl 19 para 2.
See also âJoint Letter to Mr. Sretta Thavisin Prime Minister of Thailand, Re: Request to Exempt National Screening Mechanism Applicants from Prosecution under the Immigration Actâ (December 12, 2023) <www.fortifyrights.org/tha-inv-let-2023-12-12/> accessed April 17, 2024.
HRC, âGeneral Comment No 35: Article 9â (2014) para 18.
cl 3.
s 5 para 2. The same is included in the Directive, s 3 para 2.
Directive, s 2. See also UNHCR (n 80) paras 51â53; James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, CUP 2014) 193â208. Interestingly, the draft notification contained some of these elements, but in the final version they were removed and replaced by âas determined by the Committeeâ and s 5 para 2 was added.
s 6.
s 6(2).
s 6(4).
Vincent Chetail, âAre Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Lawâ in Ruth Rubio-MarÃn (ed), Human Rights and Immigration (OUP 2014) 52.
HRC, âGeneral Comment No 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trialâ,
David Cantor, âReframing Relationships: Revisiting the Procedural Standards for Refugee Status Determination in light of Recent Human Rights Treaty Body Jurisprudenceâ (2015) 34(1) Refugee Survey Quarterly 79, 89.
ibid.
UNHCR (n 80) para 192 (vi).
ILA (n 74) para 13.
cl 17 of the Regulation.
cl 20 para 3.
Such clauses also appear inconsistent with the Thai Administrative Procedure Act, since the Committeeâs decision is an administrative order and thus rejected applicants can appeal before the Administrative Court. See Darunee Paisarnpanichkul and Kornkanok Wattanabhoom, âReport on Thai Legislation and Policies Review relating to New Arrivals from Myanmarâ (September 2023) Myanmar Response Network (MRN) 42â43.
cl 21 para 2.
s 9 of the Notification.
Chetail (n 93) 53.
UNHCR and Inter-Parliamentary Union (IPU), A Guide to International Refugee Protection and Building State Asylum Systems: Handbook for Parliamentarians No 27 (2017) 178.
Official Information Act BE 2540 (1997). Art 15(1) prohibits the disclosure of official information that will âjeopardise the national security, international relations, or national economic or financial security,â while art 15(2) prohibits the disclosure of information that will âresult in the decline in the efficiency of law enforcement or failure to achieve its objectives.â
Letter from the Office of the Council of State to the Cabinet (December 18, 2019) <https://resolution.soc.go.th/PDF_UPLOAD/2562/9933420829.pdf> accessed April 15, 2024.
See James C Hathaway, The Rights of Refugees under International Law (2nd edn, CUP 2021) 1206.
Adam Severson, âThailandâs Changing of the Guard: Negotiating the Transition from UNHCR Refugee Status Determination to a National Refugee Screening Mechanismâ (Refugee Law Initiative, November 19, 2020) <https://rli.blogs.sas.ac.uk/2020/11/19/thailands-changing-of-the-guard-negotiating-the-transition-from-unhcr-refugee-status-determination-to-a-national-refugee-screening-mechanism/> accessed April 22, 2024.