Challenges and Way Forward in Handling Rohingya refugees in Malaysia

Presentation by Richard Towle, Representative of UNHCR Malaysia

for the International Conference on Rohingya 2017

Marriot Hotel, Putrajaya, Malaysia

14 – 16 March 2017

In the present global context where over 65 million persons have been forcibly displaced from their homes by conflict and with over 20 million registered as refugees, it has never been more important to strengthen existing national systems for refugees in countries of asylum. This is imperative to increase the range of safe and regulated means by which refugees may reach sustainable solutions to their international protection needs.

In Malaysia, the number of registered Persons of Concern (POC) to UNHCR is currently 150,430, of which approximately 56,000 are Rohingya.

There are also many undocumented persons of different ethnic groups from Myanmar who are living in Malaysia but whose need for protection from UNHCR has reduced significantly or even ended, given the evolving situation in Myanmar itself. 

Despite the escalation of conflict and insecurity in Rakhine State, Myanmar since October 2016, new arrivals of Rohingya, by boat, have effectively stopped. This is due to a combination of more effective law enforcement and disruptions in the region and more costly “fares” demanded by smugglers. This has resulted in fewer new arrivals or Rohingya to Malaysia.

There is still a significant number of Rohingya currently in Malaysia – either registered with UNHCR or as yet undocumented. Without any accurate date or census, it is not possible to estimate how many unregistered Rohingya might be in need of UNHCR’s protection but it is likely to be in excess of 40,000 persons. In Malaysia, Rohingya are a group with significant protection needs and vulnerabilities. They have limited access to basic services, including the right to work, essential health and education services. Many are at risk of exploitation, and detention.

Since September 2016, the Government of Malaysia has promoted the rights of Rohingya in a number of regional and global fora, including ASEAN and the OIC. These provide new opportunities to strengthen national and regional protection and partnerships for this very vulnerable population. Malaysia is also an active member in the Bali Process and in ASEAN on Anti-Trafficking and human smuggling initiatives, which are providing positive dividends for Rohingya refugees. One such positive development, in 2016, was Government’s announcement of a work pilot scheme for 300 Rohingya refugees, which started in March 2017. It is hoped that this scheme, initially limited to the plantation and manufacturing sectors, will be expanded over time.

In the Asia region, half of the countries/territories have not acceded to the 1951 Refugee Convention and/or the 1967 Protocol.  However in some of these countries, for example India, UNHCR registered cardholders enjoy basic human rights and have access to essential services such as the government healthcare system, educational services and the employment sector. This strengthens refugees’ self-reliance, increases their resilience and reduces the burden on the host State. This results in positive outcomes for the economy, national productivity and social cohesion.  In other countries in the Asia region, such as Nepal, UNHCR has collaborated with the government to conduct registration, verification activities and assisted in finding complementary pathways for refugees which would equip them better for more durable solutions later.

In Malaysia, there are estimated to be anything between 2 - 4 million undocumented migrants or foreigners living and working in an unregulated, largely urban, labour market economy. This has a very significant impact on the socio-economic and security situation of the country. It has also become a highly debated and often polarizing public issue in the domestic and regional context.

In this debate, the unique protection needs of forced migrants (refugees and trafficked persons) have often become unhelpfully conflated and confused with a wider group of irregular and, so-called “illegal’ migrants.  Together, these issues have conspired to create a threat to four (4) separate interest groups in Malaysia:

• The Government perceives the whole amorphous group as a threat to law and order, and security, including the source of considerable organized crime, corruption and ‘reputational damage’ to the country (in respect of smuggling and trafficking);

• Malaysian Civil Society perceives the group as a threat to their way of life as Malaysians, bringing health issues and disease, insecurity and criminality, and competition for employment;

• Refugees and Victims of Forced Displacement are seen as ‘Illegal’ migrants having no legal rights or entitlements and condemned to vulnerable lives of insecurity and exploitation in the grey/black market economy of the society;

• Employers are unable to find sufficient sources of accessible regularized labour to meet their needs (at a reasonable cost), and therefore some turn to the illegal, unregulated labour force, which creates uncertainty by placing employers at risk of fines and criminal prosecution, and increases production costs due to the unpredictable nature of informal labour. Further, the hiring of unregulated labour compounds the criminality and exploitation that pervade this area of the economy in Malaysia.

The conflation of refugees and migrants has eroded support and protection for refugees who have serious and ongoing protection needs. UNHCR believes that the legitimate concerns of each interest group can be addressed through the regularisation of all Persons of Concern to UNHCR including work rights, through a strategic partnership with the Government of Malaysia, a “Win-Win” outcome would be reached:

• For the Government, a scheme to register all POCs and allow them temporary work permits, access to basic services such as healthcare and education, would address the Government’s key concerns over law and order, organized crime and, indeed, nascent threats to national security.

Such a scheme would involve the capture of biometric data of all people registered by UNHCR who, because of their need for protection, cannot currently leave the territory of Malaysia. A Government-owned registration scheme would ensure that the identity, health, and security of this group of people can be readily identified and tracked over time. This would result in registered refugees being extracted from the highly exploitative and criminalized ‘grey zone’ of society. Refugees are often “ghettoised” in communities that are “off the grid” and are marginalised.

It would also go a long way to addressing the serious problem of organized transnational crime, involving smuggling and trafficking. Improved efficiencies in data collection and storage would improve inter-state cooperation and reduce tensions between States facing the common challenges of mixed migration in the region. This would also reduce the risk of trafficking of persons and satisfy many of the concern recorded in the United States Trafficking in Persons (TiP) Annual Report where Thailand, Malaysia (Tier 2 Watch List) and Myanmar (Tier 3) are identified.

The regularisation of status and permission to work, in addition to access to healthcare and education, would impact positively on law and order in Malaysia. The spill-over effects of problems in refugee communities would be minimised if refugees are registered with Government identification and given opportunities to be self-sufficient.  Social ills associated with alienating or marginalised refugees communities, such as criminal activities and anti-social behaviour, would subsequently decrease. Regularisation of status and permission to work for refugees will limit the politicisation of the refugee issue as a threat to national and social cohesion. A national database will also ensure law enforcement is properly conducted without arbitrary arrest, bribery and detention.  This will benefit Malaysian society at large, as it will improve confidence in the Government’s management of immigration flows.

Access to formal employment, education and health care, via registration in a national database, will not just provide better protection to refugees, but it will also greatly assist relevant government and international agencies in their data collection. A national registration system, in close cooperation with the UNHCR, will strengthen intelligence gathering activities with security checks, character assessments, health screening and biometric data.  The integrity of Malaysian’s borders and immigration will be protected, as mixed flows of individuals moving irregularly will be monitored and managed through official channels.

A proper regularisation programme would also ensure an empirical basics on which the Sustainable Development Goals (SDGs) are based. The objectives of the SDGs ‘to leave no one behind’ also includes refugees and stateless persons. A registration system would ensure that the vulnerable population of refugees is identified and supported in any SDG action plans.

Such a scheme would also reinforce Malaysia’s regional leadership in ASEAN, and pave the way for increased international partnerships. The Government’s leadership in promoting the plight of Rohingya, particularly in the ASEAN and OIC region is positive. And its overt support for Rohingya, and other refugees in Malaysia, will be well regarded regionally and internationally.

• For Malaysian Civil Society, a more transparent and regulated approach would assuage concerns that refugees pose a threat to their society or are abusing the hospitality of asylum offered. At the same time, the positive contributions made by refugees, not least to the labour market economy, during their temporary stay in Malaysia, would be more obvious and acknowledged. UNHCR estimates that regularised POCs would annually contribute RM 1,150,000,000 in expenditures on local goods and services and would generate RM 120,000,000 in worker registration fees for the government.

Refugees currently have no lawful means to earn a livelihood or to support themselves and their families and contribute to Malaysian labour market economy.  This deepens the profound sense of insecurity and trauma that accompanies their forced displacement. It also prevents them from making a meaningful contribution to Malaysia during their stay in exile. Regularisation would greatly improve this situation.

Health Care Benefits

Although refugees can access public healthcare and are provided with a private health insurance scheme, there is, however, no adequate of medical subsidy or discount. Health care is generally unaffordable and therefore inaccessible to the majority of refugees. This contributes to refugees avoiding healthcare altogether, thus potentially worsening the associated risks, not only to themselves but to the wider community.

If public health issues such as TB and other conditions cannot be identified and treated this may compromise the health of the wider Malaysian population and also dramatically increase public health care costs. Preventive and early health care interventions make more sense and are more cost effective in the longer term.

Education Benefits

No access to the formal Malaysian public education system has also marginalised refugees.  The current situation is producing a generation of young adult refugees with limited education which, in turn, will impact on their capacity to improve their lives and provide for their families in the future. It will also limit their ability to contribute positively to Malaysian society during their stay in the country.

To create more sustainable pathways towards self-reliance and improving employability, technical and vocational trainings would provide refugees with the opportunity to seek employment and self-employment as well as prevent them from entering into negative coping mechanisms, such as begging and criminal activities to survive.

Negative perceptions of refugees or a backlash against them by civil society would be better managed if they are seen as ‘legal’ individuals with real identities, via their registration in the Malaysian national database.

• For Refugees and Victims of Forced Displacement, a Government registered scheme would liberate them from the criminalized and exploitative social strata of “illegal migrants”. They would have a higher degree of protection from arbitrary arrest and exploitation, including in the work force, and they would have higher levels of disposable income to improve their skill-set and self-reliance (including better health care, education) and community resilience for their families. A better managed registration system would allow better identification and support for very vulnerable refugees. These include unrecognised Rohingya children, victims of sexual gender based violence (including trafficking) and others with acute physical or psychological vulnerabilities.

• For Employers, refugees would provide a willing, legal, and readily available pool of employees at a cost that is reasonable (when compared to the currently high costs of procurement and retention of foreign labour). Employers would not need to resort to the unregulated (and illegal) labour market. A regularised scheme will be a cost-effective, human capital investment and will benefit the economy in terms of adding productivity while keeping costs low.  There will be a competitive labour pool.

Concerns have been raised as to whether such a regularisation scheme would be:

• a ‘pull factor’ or ‘open the floodgates’ to others seeking to take advantage of the benefits for refugees and forced migrants;
• to the detriment of the host community in the form of competition for jobs and a drain on health and other state provided services;
• de facto, a recognition that Malaysia had assumed legal responsibilities under the 1951

Convention relating to the Status of Refugees and its 1967 Protocol.

In UNHCR’s view these concerns are without foundation:

I.             UNHCR would provide the controlled ‘gateway’ for registration and access to such a regularisation scheme and ensure that only those deserving and entitled to UNHCR’s protection are able to be considered for the scheme. Access procedures would be fairly but rigorously applied in close cooperation with the Government of Malaysia.

II.            Many refugees are already in Malaysia and others may come irrespective of such a scheme. Regularising POCs creates opportunities for durable solutions in terms of both:

1. Strengthening their skills, resilience, and integration capacities if they are resettled to a third country and
2. For safe, voluntary repatriation when circumstances in the home country permit by increasing earnings, skills, and capacity for self-reliant income generation (including facilitating travel documents) on return.

III.           Many POCs are already working in the unregulated market economy and there is no empirical evidence that they take jobs away from Malaysian nationals. To the contrary, evidence suggests that they fulfil a market need that Malaysians choose not to be engaged in. Further, a study by the World Bank demonstrates that for every 10 foreign employees hired as labourers, 6 higher skilled and higher paid jobs are created for locals.

IV.          POCs are currently living in Malaysia at little of no cost to the Malaysian community. All support is currently provided by UNHCR and civil society (e.g. schools, medical clinics and even public hospitals costs are covered by private health insurance) without cost to the Malaysian tax payer. Regularising POCs would not alter the conditions of this relationship, nor would it add costs to the Government. Indeed, the positive contribution to the labour economy is substantial and largely unrecognized and any costs reduced or neutralised by the positive benefits flowing.

V.            Such a scheme could not, as a matter of international law, be construed as binding Malaysia to the Refugee Convention (see regional examples below). This could only occur through a proactive decision to accede to the Convention and the deposit of the instruments of accession as prescribed by international law. UNHCR understands that such a Scheme could be established as a Special Program authorized by the Executive and without the need for domestic law or regulation being promulgated.

On balance, and in light of these factors, UNHCR is convinced that the benefits of such a Regularisation Scheme would, overwhelmingly, outweigh any perceived disadvantages.

ANNEX 1

REGIONAL EXAMPLES

INDIA

While India is not a State party to the 1951 Convention or the 1967 Protocol relating to the Status of Refugees, it does have positive administrative policy frameworks and practices that uphold refugee protection. The status and treatment of refugees in India is governed under the Foreigners Act of 1946 which regulates the entry, presence and departure of foreigners to and from India.

• There are no restrictions on refugees’ freedom of movement within India.
• Refugees enjoy basic human rights in India.
• Refugees have access to the national judicial system, government health care and education services.
• Refugees can apply on an individual basis for a visa which regularises their stay and facilitates their access to employment as well as to tertiary education.

NEPAL

Nepal is not a State party to the 1951 Convention or the 1967 Protocol relating to the Status of Refugees.  The status and treatment of refugees in Nepal is governed under administrative decisions and directives of the Government in the absence of domestic refugee legislation.

• UNHCR supported the Government in conducting registration and verification activities for refugees.
• There is no official restrictions on freedom of movement for refugees.
• Urban refugees have access to primary health care, psycho-social counselling, education and skills/language training.

SRI LANKA

Sri Lanka is not a State party to the 1951 Convention or the 1967 Protocol relating to the Status of Refugees. The status and treatment of refugees is governed under the Immigrants and Emigrants Act as well as by the civil and criminal law of the country.

• There are no restrictions on freedom of movement within Sri Lanka.
• Refugees are provided with access to free health care at government health facilities pursuant to an agreement with the Ministry of Health.

PAKISTAN

Sri Lanka is not a State party to the 1951 Convention or the 1967 Protocol relating to the Status of Refugees, nor does it have any domestic legal framework for the protection of refugees. However refugees are registered by the Government of Pakistan on a prima facie basis and they hold Proof of Registration cards.  The Proof of Registration cards provide the refugees with temporary legal residence