BANGKOK – In recent years, Thailand has witnessed various positive developments in guaranteeing child rights, which is most welcome. They include the country’s commitment to various human rights treaties, such as the UN Convention on the Rights of the Child and its protocols.
Various new laws have also been lauded widely, for example, the Child Protection Act (2003) which advocates the protection of all children in the country and the Birth Registration Act (2008) which ensures the birth of all children in Thailand will be registered, irrespective of the origins of their parents.
Yet a most disconcerting piece of news was reported recently.
Interior Ministry officials are now trying to introduce regulations to classify the children of illegal immigrants who were born in Thailand as illegal immigrants themselves. This opens the door to the threat of deportation of these children from Thailand.
Human rights lawyer Surapong Kongchantuk, chairman of the Lawyers Council of Thailand’s human rights subcommittee on ethnic minorities, the stateless, migrant workers and the displaced, said the classification of “illegal immigrant” is better than being a stateless person, as it allows for repatriation.
However, since these children did not cross the border into Thailand, but were born here, it is both illogical and unjust to claim they migrated here illegally.
Yet instead of humanising the law on this issue, the regulations mentioned will compound the problem and inflict further injustices still on the children.
They also conflict with Thailand’s international obligations under the Convention on the Rights of the Children, which advocates the key principles of non-discrimination and best interests of the child.
The background to these anomalies can be traced back to the Thailand’s nationality law and its amendments.
Originally, the nationality law, dating back to the mid-1960s, recognised both the acquisition of nationality by birth in Thailand and blood links with the country, irrespective of immigration status, as well as application for naturalisation.
However, an executive decree in 1972 started to make Thai nationality conditional on the immigration law and revoked the Thai nationality of those born in Thailand if their parents were considered illegal immigrants.
The main immigration law on the subject dates from 1979, and the law itself distinguishes rigorously between legal immigrants and illegal immigrants, although the authorities also enjoy discretion in regard to whether or not to apply the law strictly.
In 1992, the nationality law was amended and introduced a provision _ Article 7 (2) _ which aggravated the situation by stipulating that a person who is born in Thailand, but who has not acquired Thai nationality, is to be considered as an illegal immigrant unless there are regulations to the contrary.
In 2008, another nationality law tried to rectify the situation, to some extent, by returning Thai nationality to those deprived of it by decree 337.
It also opted to grant nationality to children born of illegal immigrants in Thailand before 1992.
However, the situation remained unclear for those born after 1992.
The 2008 law _ also by Article 7 (2) _ added that the status of a person who is born in Thailand, but who has not acquired Thai nationality, would depend upon new ministerial regulations, bearing in mind both national security and human rights factors.
In effect, pending adoption of these new regulations, children in this situation are to be regarded as having entered the country without permission _ in other words, as illegal immigrants. However, the tone of the 2008 law was to enable new specific regulations to be prepared and adopted, to move beyond classifying children in this situation as illegal immigrants and to enable them to be treated in a humane and non-discriminatory manner.
It has taken some five years for new regulations to evolve on this front, but instead of detaching these children from the immigration law and removing them from stigmatisation as illegal immigrants, the recently proposed regulations take us back to square one and link them closely to the law again.
Basically, they are to be considered as having entered the country without permission under the immigration law, unless they fall under various exceptions such as where their parents are given permission to stay in this country as special cases; where the parents are given temporary permission to stay in Thailand; or where the children are given permission to stay in the country as special cases or are given temporary permission to stay here.
There are parallel provisions in the case where the parents are considered as having entered the country without permission under the immigration law.
A number of exceptions from classification as illegal immigrants are provided for.
For instance, the status of a child who is given permission to stay in the country and who attains the age of majority is not to be affected when the status of legal immigrants is withdrawn from the parents.
Since these regulations are likely to be considered by policy-makers at the highest level in the near future, it is imperative to suspend adoption of the regulations and to revise them effectively to ensure compliance with international law and humanitarian standards.
In particular, formulation of these regulations should be based upon the following considerations:
– Detach the status of children born in Thailand from the immigration law, especially the classification and stigmatization as illegal immigrants under the immigration law;
– Offer children born in Thailand, irrespective of their origins, assistance and protection in keeping with international standards, especially the Convention on the Rights of the Child;
– Ensure the birth registration of all these children and take steps to enable them to acquire a nationality (whether Thai nationality or some other nationality on the basis of international solidarity);
– Advocate and implement the principle of non-discrimination and best interests of the child which are also found in Thai laws, such as the constitution and the Child Protection Act which should override the immigration law;
– Uphold the presumption of innocence as also applying to children born in Thailand, even where their parents are considered to be illegal immigrants, and avoid subjecting them to the immigration law and its criminal law implications and sanctions, such as the threat of detention and deportation. – Vitit Muntarbhorn