THAILAND: Children’s immigration status under threat

A Statement by the Asian Human Rights Commission

THAILAND: Children’s legal and immigration status under threat from draft ministerial regulation

The Asian Human Rights Commission (AHRC) has received deeply concerning information from Stateless Watch for Research and Development Institute of Thailand (SWIT) regarding a recent draft ministerial regulation proposed by the Ministry of Interior. If it enters into law, the draft Ministerial Regulation Specifying the Status and Conditions of Residing in the Kingdom of Thailand for Persons Born in the Kingdom of Thailand Who Are Not Thai Nationals, currently under examination by the Council of Ministers, will dispossess children born to non-Thai parents of citizenship. Under the draft regulation, children, and adults born in Thailand, to non-Thai parents will be deemed to have entered and resided in Thailand without permission under the Immigration Act B.E. 2522 (1979). This will be the case even though they were born in Thailand and have not left the country, and so therefore have not entered the country, whether legally or illegally. The draft regulation is contrary to domestic and international law, including that specified in conventions to which Thailand is a state party and is therefore legally bound to observe.

The Ministry of Interior recently drafted a ministerial regulation which prescribes the legal status and conditions of residing in the Thailand of persons born in Thailand who have not yet acquired Thai nationality. At present, the draft regulation is waiting for approval from the Council of Ministers. If the Council of Ministers approves this draft, it will be subordinate legislation, or legislation made by executive order under powers granted by the legislature to the Ministry of Interior. Under the draft regulation, many children and adults born in Thailand to non-Thai parents will not acquire Thai nationality. This means that their legal status will be that of an illegal immigrant, and they will be cast as those who have entered and resided in Thailand without permission.

The draft Ministerial Regulation Specifying the Status and Conditions of Residing in the Kingdom of Thailand for Persons Born in the Kingdom of Thailand Who Are Not Thai Nationals is contrary to law in the following ways:

1. The draft ministerial regulation is contrary to the spirit of Section 7. bis. paragraph three of the Nationality Act (No.4) B.E.2551 (2008). Section 7. bis. paragraph three aims to recognize the right to reside in Thailand of children and others born on Thai territory who have not acquired Thai nationality. By assigning these persons the status of illegal immigrants, the draft ministerial regulation is directly contrary to the spirit of the law.

2.The draft ministerial regulation is contrary to Section 2 of the Criminal Code, Section 39 of Constitution of the Kingdom of Thailand B.E. 2550 (2007), Article 15 of the International Covenant on Civil and Political Rights (ICCPR) and Article11(2) of the Universal Declaration of Human Rights (UDHR). Each of these laws protect individuals from being charged or punished for criminal acts that they did not commit. The draft ministerial regulation provides that the individuals in question shall be deemed to have entered and resided in the Kingdom of Thailand without permission under immigration law, even though they were born in Thailand. They will be criminally punished even though they have not committed criminal acts.

3. Article 2 of the draft ministerial regulation specifies that in line with Section 7 bis paragraph one of the Nationality Act, B.E.2508 as amended by the Nationality Act (No.2), B.E. 2535(1992), a person born in Thailand does not acquire Thai nationality if his or her father and mother, or father or mother did not lawfully enter Thailand. The person shall be deemed to have entered and resided in the Kingdom of Thailand without permission. As most of the people potentially affected by this draft ministerial regulation are children, the AHRC would like to point out that it is in conflict with Section 22 of the Child Protection Act, B.E.2546 (2003), which notes that, “The treatment of a child in any case shall give primary importance to the best interests of the child and any discrimination of an unfair nature shall not be allowed”; a similar protection of the best interests of the child is contained in Article 3 (1) of the Convention on the Rights of the Child (CRC), to which Thailand is a state party. Remaining with his or her parents is clearly in the best interests of a child, yet this draft ministerial regulation attempts to punish children for doing so.

4.Given that as noted above, the draft ministerial regulation is contrary to both Thai and international law, if it is passed, the Ministry of Interior will have committed an unlawful act. The AHRC also notes that the Ministry of Interior would be acting beyond its scope, and given the probable effects noted, would therefore constitute an abuse of power.

5. Section 3, paragraph two of the 2007 Constitution mandates that “The National Assembly, the Council of Ministers, the Courts, other Constitutional organizations and State agencies shall perform duties of office by the rule of law.” The draft Ministerial Regulation Specifying the Status and Conditions of Residing in the Kingdom of Thailand for Persons Born in the Kingdom of Thailand Who Are Not Thai Nationals is in clear and direct tension with the rule of law; by declining to approve it, the Council of Ministers will show their clear commitment to upholding the rule of law.

The Asian Human Rights Commission would like to remind the Government of Thailand that in addition to obligations under domestic law, as a state party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC), Thailand is legally-bound to uphold the human rights principles named therein. If the draft Ministerial Regulation Specifying the Status and Conditions of Residing in the Kingdom of Thailand for Persons Born in the Kingdom of Thailand Who Are Not Thai Nationals goes into force, children will be dispossessed of citizenship and the exclusion present within ultra-nationalist versions of Thai-ness will be legally codified by the state. The AHRC calls on the Council of Ministers to withhold approval of this draft ministerial regulation and the Ministry of Interior to work to strengthen, not dismantle, the rights of stateless children and people in Thailand.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
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