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Malaysia: End Abusive Immigration Detention

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Malaysia should immediately release all children held in immigration detention facilities and allow the United Nations refugee agency regular access to those facilities, Human Rights Watch has said.

Malaysia’s Home Ministry reported that, as of October 26, 2020, 756 children were being held in immigration detention facilities nationwide, including 326 from Myanmar who are detained without parents or guardians.

 Malaysia has denied the UN Office of the High Commissioner for Refugees (UNHCR) access to immigration facilities since August 2019, leaving the agency unable to determine whether those children and others detained have already been determined to be refugees or are entitled to refugee protection.

“It’s appalling that Malaysia is detaining so many children in overcrowded and unsanitary detention facilities, often without parents or guardians,” said Phil Robertson, deputy Asia director at Human Rights Watch.

 “These vulnerable children, including many who likely fled atrocities in Myanmar, should be cared for, not treated as criminals.”

The UN Convention on the Rights of the Child (CRC), to which Malaysia is a party, prohibits the detention of children for immigration reasons. A 2019 UN global study on children deprived of liberty reported that even if detention conditions are good, detaining children exacerbates existing health conditions and causes new ones, including anxiety, depression, post-traumatic stress, and suicidal thoughts. 

Detention also exposes children to the risk of sexual abuse and exploitation, even in countries that respect the obligation not to detain children with unrelated adults. In addition, the UN children’s fund, UNICEF, has called on all governments to release children from detention, specifically including immigration detention, due to the Covid-19 pandemic.

Malaysia is not a party to the 1951 Refugee Convention but is still bound by customary international refugee law. Over 175,000 refugees and asylum seekers, most of whom come from Myanmar, are registered with the UNHCR office but have no legal status and remain unable to work or enroll in government schools.

Prime Minister Muhyiddin Yassin’s Perikatan Nasional government has discounted the rights of refugees, with the home minister stating that they have “no status, rights, or basis to present any demands to the government.” In April, the Malaysian Navy pushed boatloads of desperate Rohingya refugees who were trying to reach Malaysia’s shores back out to sea, claiming that they were doing so to prevent the spread of Covid-19.

Those permitted to land were detained as “illegal migrants,” with some prosecuted for immigration violations and imprisoned. The Malaysian government did not respond when a massive, xenophobic campaign targeted Rohingya refugee leaders and their community, as well as their Malaysian defenders, in late April.  

Since May, the authorities have conducted numerous raids, ensnaring thousands of migrants, including children, and detaining them in overcrowded and unsanitary immigration detention centers to await deportation. 

The National Task Force commander, Vice-Admiral Aris Adi Tan Abdullah, told local media on November 7 that of the more than 8,000 people detained for immigration violations between May and early November, only 281 had been deported, with the rest remaining in immigration detention centers. Several UN experts expressed concern that the crackdown was “severely undermining efforts to fight the pandemic” and at least five immigration detention centers have subsequently had outbreaks of Covid-19.

The Malaysian authorities should only use immigration detention as an exceptional measure of last resort, and ensure that their immigration detention centers meet international standards under the UN Standard Minimum Rules for the Treatment of Prisoners (“Mandela Rules”). 

The authorities should urgently identify and release children along with family members and provide safe alternatives to detention to which humanitarian agencies have regular access. The authorities should also identify and immediately release all detained refugees who are registered with UNHCR.

The Malaysian government should immediately allow UNHCR to exercise its mandate by allowing it to determine asylum seekers’ refugee status and facilitate durable solutions, including integration in Malaysia, for those recognized as refugees. 

The government should also ratify the 1951 Refugee Convention and establish asylum procedures consistent with international standards for stateless people and foreign nationals at risk of persecution in their home countries.

“The spread of Covid-19 makes it even more urgent for the Malaysian government a to reassess its practice of detaining migrants, including children,” Robertson said. “Immigration authorities should stop playing games with people’s lives and immediately release all detained children and grant the UN refugee agency access to all detained refugees and asylum seekers.”

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