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Lack of UNHCR access to detention centres shows need to overhaul refugee framework

File photo: Hasnoor Hussain/Al Jazeera

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Women’s Aid Organisation (WAO) is alarmed by reports that the UNHCR, the UN’s refugee agency, has not been allowed to visit immigration detention centres since 2019, as well as by the detention of women and children within these centres, including under conditions that violate their human rights and contribute to sexual and gender-based violence.

According to recent reports, the government has refused entry to the UNHCR into detention centres for more than one year. These visits are crucial to enable the UNHCR to identify refugees, who should not be detained in detention centres. The inability of the UNHCR to access these centres also results in the lack of any oversight over detention conditions.

The WAO is also deeply concerned by the number of children who are in detention – 756 – according to the home affairs minister’s written reply to a question by MP Wong Shu Qi. As the Dewan Rakyat Public Accounts Committee reported recently, these detention centres are “not suitable nor conducive” for children.

The government must act to comprehensively overhaul the legal framework around refugees and asylum seekers – in line with the recommendation of the UN Committee on the Elimination of All Forms of Discrimination Against Women (Cedaw Committee) – including establishing alternatives to detention for women and children and, in the interim, to implement measures to mitigate the risks of sexual and gender-based violence.

Women, children refugees face high risk of sexual and gender-based violence

In its 2018 concluding observations to Malaysia, the Cedaw Committee stated its concern that “the lack of legal and administrative framework to protect and regularise the status of asylum-seekers and refugees in the State party exposes asylum-seeking and refugee women and girls to a range of human rights violations, including arbitrary arrest and detention, exploitation, sexual and gender-based violence, including in detention centres, as well as limited access to the formal labour market, public education, health, social services and legal assistance”.

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General Recommendation 32 of the Cedaw Committee requires a gender-sensitive approach to be implemented at every stage of the asylum process. This includes taking into account the specific needs of survivors of sexual and gender-based violence and vulnerable groups of women and girls, such as providing safe facilities and access to basic hygiene and healthcare needs. Based on information in reports of the Human Rights Commission of Malaysia (Suhakam), for refugees detained by the government, these standards are not being met, and girls in detention are at serious risk of sexual and gender-based violence.

Among the conditions in detention centres that contribute to the risk of sexual and gender-based violence for women and girls are a dearth of dedicated safe spaces for women and girls, including spaces for confidential interviews with service providers; a lack of psychosocial support; and a lack of translators, including female translators, which hinders access to help.

Additionally, practical issues such as close quarters, insufficient numbers of beds, and a lack of separation between men and women increase the risk of sexual and gender-based violence.

For boys, the risk of sexual and gender-based violence also arises as a result of the practice of boys over age 12 being detained with adult men.

Women and children should not be detained in detention centres according to international human rights standards

When it comes to children, international human rights standards, including those articulated in the Convention on the Rights of the Child (CRC), to which Malaysia is a party, are unequivocal in acknowledging that detention must be a last-resort option and is a violation of children’s rights.

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The joint general comment of the CRC Committee and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families makes clear that immigration detention as well as acts to intercept refugees and asylum seekers are a violation of children’s rights

Under the CRC, the government is obligated to ensure that a child who is a refugee receives protection and humanitarian assistance. Article 37 of the CRC states that the arrest and detention of a child must be used only as a “measure of last resort and for the shortest appropriate period of time”. Additionally, Article 22 articulates the obligation to ensure that a child who is seeking refugee status or who is considered a refugee, whether unaccompanied or accompanied, receives appropriate protection and humanitarian assistance.

The Cedaw Committee too in its 2018 concluding observations to Malaysia recommended that the government “(e)stablish alternatives to detention for asylum-seeking and refugee women and girls, and in the meantime take concrete measures to ensure that detained women and girls … are protected from all forms of gender-based violence”.

Government must implement a comprehensive legal framework for refugees and asylum seekers in line with the Cedaw Committee’s recommendation

Malaysia’s unwillingness to legally recognise refugees – and the subsequent lack of a comprehensive legal framework that acknowledges the basic human rights of refugees – results in countless violations of their rights.

In its 2018 concluding observations to Malaysia, the Cedaw Committee recommended to the Malaysian government to adopt national asylum and refugee procedures in conformity with international standards. This would include respecting the principle of non-refoulement (which prohibits any state from forcing refugees and asylum seekers to return to a country in which they may face persecution), as well as granting refugees the right to work; establishing alternatives to detention; and taking measures to prevent sexual and gender-based violence among refugee women and children.

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Two years since these recommendations were made, no concrete steps have been taken towards their implementation and fulfilling our obligations under Cedaw. Last year, the government was expected to roll out a pilot project trialling an alternative to detention programme, which, if successful, could see hundreds of children moved out of immigration detention centres nationwide. However, this project has not yet been started.

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