Thailand Law Journal 2009 Spring Issue 1 Volume 12

However, there are glaring failings with the registration process. The biggest problem is that the 3,800 baht registration fee is extremely high for Burmese migrants who typically make anywhere from 50 to 280 baht per day,¹³⁷ depending on the province and sector of work. Even assuming that the employer is paying the migrant at legal minimum wage levels of 133 baht a day, calculating daily living expenses, it would take a migrant a substantial amount of time to save up 3,800 baht.¹³⁸ For this reason, most employers pay the registration fees for their migrant workers, and then, later take it out directly from the workers' pay. ¹³⁹ Often, this pragmatic solution works. Other times, unscrupulous employers cheat migrant employees out of more than the registration fees. It is common for employers to hire middlemen to handle the registration process. Employers then charge the migrants for the cost of hiring the middlemen, transportation expenses, and other costs incurred in registration.¹⁴⁰ Fraud and embezzlement are frequent, especially because many migrants do not understand the registration process and do not know the exact fee that the employer should be extracting from their pay.¹⁴¹

Burmese migrants cannot change employers once registered. They must re-register and pay the registration fees again if they wish to do so.¹⁴² Employers argue that, without this regulation, migrant workers' turnover would be high; furthermore, employers would lose the money they invested in registration fees and have problems filling empty positions and meeting production goals.¹⁴³ It is a common practice for employers to keep the original permit document and to only give the migrant a copy of it.¹⁴⁴ Though there are legitimate grounds for employer concerns,¹⁴⁵ restricting migrants to one employer creates opportunity for labor exploitation and abuse. Employers who withhold the permit can threaten migrants with deportation, thereby scaring migrants into silence and preventing them from reporting labor abuses. This can lead to severe exploitation such as when a factory owner in Tak province withheld two months pay, forced migrants to work fourteen hour days, and assaulted workers when they protested.¹⁴⁶ Officially, migrants can apply for another job and report their change of occupation with the Labour Office.¹⁴⁷ But, as mentioned above, knowledge of legal rights is generally poor among the migrant population.

Another failing of the registration process is that it does not afford migrants the right to move outside of the province in which they are registered. If a migrant is caught outside of his registered province, he is considered illegal and may be subjected to harassment and deportation.¹⁴⁸ Travel outside the province is restricted to very limited circumstances such as: (1) court appearances as a witness or to receive a court order, (2) response to a warrant, (3) hospitalization, or (4) authorization by the Department of Employment to work in another location owned by the registered employer or in response to a labor shortage.¹⁴⁹ Employers support these restrictions because they fear losing migrants' registration fees.¹⁵⁰ The Thai government also wants to manage the physical movements of migrants. However, prohibiting inter-provincial movement separates migrants from their families and friends. It is routine for parents to send their children to another province to work.¹⁵¹ In cases of emergency, this restriction places undue burden on migrants.

B. International Treaties and Bilateral Agreements
In addition to domestic policies, Thailand has also sought to manage and regulate migration through international cooperation. In April 1999, the Thai government organized the International Symposium on Migration, which was attended by nineteen governments from Asia and the Pacific Region.¹⁵² The symposium was an endeavor by the Thai government to spearhead discussion and action on irregular migration in the region. The symposium's major accomplishment was the Bangkok Declaration which noted that globalization, economic crises, and natural disasters have made irregular migration "a major economic, social, humanitarian, political and security concern for a number of countries in the Asia-Pacific region."¹⁵³ The governments participating in the Bangkok Declaration agreed to: (1) share information and technical assistance with regards to irregular migration; (2) criminalize human trafficking, especially of women and children; and (3) cooperate in the return of irregular migrants.¹⁵⁴ Despite the participants' emphasis on broader regional cooperation, no significant multilateral efforts to address migration have occurred since the Bangkok Declaration was signed.¹⁵⁵

The Thai government has sought cooperation through bilateral agreements, especially with neighboring countries Laos, Cambodia, and Myanmar, where almost all of the 1.3 million irregular migrants originate. Memorandums of Understandings (MOUs) have been signed with Laos (October, 2002), Cambodia (May, 2003), and Myanmar (June, 2003).¹⁵⁶ Like the Bangkok Declaration, these MOUs address economic, social, and security concerns with regards to irregular migration.¹⁵⁷ New migrants entering Thailand, who are barred from obtaining a work permit because they did not register with the Ministry of Interior prior to 2004,¹⁵⁸ can still work in Thailand under the terms of their countries' respective MOUs.¹⁵⁹ Under the MOUs, migrants apply for a passport or a border-pass from their country of origin, and pay a fee of 5,000 baht for a two-year stay with the possibility of a two-year extension.¹⁶⁰ After a maximum of four years, the migrant workers must return to their country of origin and must wait three years before reapplying to work in the same destination country.¹⁶¹

The MOUs set up an elaborate system for the temporary employment of each country's citizens for work in the other country. Each bilateral agreement requires active participation of the two countries and, at minimum, annual consultations between high ranking officials of both countries.¹⁶² One government will prepare a list of jobs available, while the other government will prepare a list of selected applicants for those jobs, complete with information on their permanent addresses, references, and work experience.¹⁶³ When the applicants are chosen, both countries work to ensure that migrant workers meet the requirements for visas, work permits, health insurance, taxes, and employment contracts.¹⁶⁴ In addition, the MOUs stipulate that each country will set up a savings fund, into which migrants will be required to contribute 15% of their monthly salary.¹⁶⁵ Workers then receive their entire savings contributions, including interest, within seven days after returning to their permanent address.¹⁶⁶

There is little information available on the effectiveness of the MOU with Myanmar since it only took effect in August of 2005. Nonetheless, it is evident that the MOU does not account for the realities of the economic and social conditions in Myanmar. The 5,000 baht registration fee is economically out of reach for poor Burmese laborers, and even if the employer loans the migrant money for the fee, the potential for exploitation and abuse, as with the Cabinet Decisions, will still exist. Burmese migrants may also be unable to take the required three-year break. In their country of origin, high unemployment rates and insufficient wages make it difficult to support themselves or their families. Savings accrued in Thailand are generally insufficient to make up the difference. After paying for registration fees and daily living expenses, most Burmese migrants have little left to save.¹⁶⁷ Any extra money is often sent back to family remaining in Myanmar.¹⁶⁸ In addition, though the vast majority of migrants leave Myanmar for economic reasons, large numbers of migrants also leave because of conflicts with the military junta.¹⁶⁹ It is unreasonable to think that these same migrants who are being pushed out of Myanmar due to unfair taxes, forced relocation, and violence will go to the military junta to enroll in the program. Refugees will not want to interact with the military junta for the registration process.

Logistically, the MOU between Thailand and Myanmar seems to be unreasonable. It is certainly difficult to gather all potential migrants' names, permanent addresses, references, and work experiences, and the bureaucratic costs of such an endeavor are tremendous. It might be nearly impossible to implement the savings fund provision since most Burmese migrants are from rural areas where there is no reliable postal system.¹⁷⁰ Hence, there will be no way for the migrants to obtain the money owed to them. Enforcement will also probably be lax or nonexistent. Neither the Thai nor the Myanmar government will be able to check whether a migrant has returned to his or her permanent address unless government officials plan to individually find and hand-deliver to each migrant the money owed to him or her. Furthermore, the governments will not be able to ensure that a migrant has taken a three-year break, especially because the borders are so porous.¹⁷¹

Although Thailand has made some efforts through the Bangkok Declaration and the Memorandum of Understandings with neighboring countries, it has not held itself to international standards for dealing with irregular migrants. Specifically, Thailand has failed to sign the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (hereinafter "Convention on Migrant Workers"), which took force in July 2003.¹⁷² The Convention on Migrant Workers is the definitive international treaty on migrant workers, and it holds signatories to numerous duties and obligations for the welfare of the migrant such as granting them the right to participate in unions,¹⁷³ giving them equal enjoyment as nationals with regards to social security,¹⁷⁴ and the right to back-pay even when expelled from the country.¹⁷⁵ The Kingdom has also failed to sign the Convention on the Reduction of Statelessness, which entered into force on December 12, 1975.¹⁷⁶ This Convention specifically addresses the issue of statelessness, a serious problem for Burmese migrant children in Thailand that the Thai government has completely ignored. The issue of statelessness and the Kingdom's moral and legal responsibilities will be addressed later in this paper.

In Thailand's defense, these two international treaties have not been widely accepted. Kate Jastram, Lecturer at Boalt Hall School of Law, notes that "no other destination country has ratified [the Convention on Migrant Workers] either."¹⁷⁷ In addition, the Convention on the Reduction of Statelessness has been ratified by only 26 countries.¹⁷⁸ Nonetheless, the Kingdom should look to these treaties as goals to strive towards and should uphold principles enshrined in the two treaties -- equality, fairness, and protection for the vulnerable.

[FN137] See Naw Seng, Labor-Burma: Thai Crackdown Means Life in Hiding, Uncertainty, INTER PRESS SERV., Mar. 22, 2004 (reporting that migrants working in Mae Sot, a province near the Thai-Burma border, can make as low as 20 baht a day); Interview with Maung Ko, supra note 136 (responding that he made 280 baht as a hotel worker in Pang Nga).

[FN138] Interview with Sein Min, Burmese Migrant, in Samut Songkrahm, Thail. (Aug. 7, 2005). Sein Min had to save for several months in order to pay for his registration fee. Id. When there is an emergency, such as an illness, Burmese migrants who do not have enough often have to borrow informally from one another in the community. Id.

[FN139] Id.

[FN140] Interview with Sandar Win, supra note 85. Sandar Win's mother had to pay 4,500 baht, over 700 baht more than the actual cost of the registration fee. Id. It is difficult for migrants to bargain or challenge the amount set by the employers. Id.

[FN141] Interview with Maung Ko, supra note 136. Migrants generally do not know how much their employers are taking out from their monthly pay checks. Id. The confusion is exacerbated by the fact that employers often house and feed migrants -- taking the cost of room and board from their pay checks too. Id. The transactions are very informal. Id.

[FN142] HUGUET & PUNPUING, supra note 58, at 39.

[FN143] See id.; see also Akarat Rattanajan, Media, Remarks at "Awareness-Raising on Migrant Rights and Welfare for Government Officials, employers, Migrants and Host Community Members in Thailand" Consultative Forum, Mukdahan, Thail. (May 26, 2005) [hereinafter Mukdahan Consultative Forum].

[FN144] Prabkraisi, supra note 130.

[FN145] Id. (citing the experience of a seafood company called Andaman Seafood, where the company had originally 543 registered migrants, but was left with 143 because migrants moved, returned to their country, or did not show up for work and disappeared).

[FN146] Macan-Markar, supra note 59.

[FN147] Prabkraisi, supra note 130.

[FN148] See Hanna Ingber, Even Legal Migrants Face Problems, The Irrawady (Bangkok), June 1, 2005, http://www.irrawaddy.org/aviewer.asp?a=4682&z=150.

[FN149] Prabkraisi, supra note 130.

[FN150] HUGUET & PUNPUING, supra note 58, at 39.

[FN151] CAOUETTE & PACK, supra note 72, at 30.

[FN152] HUGUET & PUNPUING, supra note 58, at 35. The governments that took part in the Bangkok Declaration were Australia, Bangladesh, Brunei Darussalam, Cambodia, China, Indonesia, Japan, Republic of Korea, Lao PDR, Malaysia, Myanmar, New Zealand, Papua New Guinea, the Philippines, Singapore, Sri Lanka, Thailand, and Vietnam, as well as the Hong Kong Special Administrative Region. International Symposium on Migration, Apr. 21-23, 1999, The Bangkok Declaration on Irregular Migration [hereinafter Bangkok Declaration] (April 23, 1999).

[FN153] Bangkok Declaration, cl. 4.

[FN154] Id.

[FN155] HUGUET & PUNPUING, supra note 58, at 35.

[FN156] Id.

[FN157] Id.

[FN158] See Sookanijvichai, supra note 102 and Prabkraisi, supra note 130.

[FN159] Mr. Nara, Office of Foreign Worker Administration, Department of Employment, Remarks at Tak Consultative Forum, supra note 109.

[FN160] Id.

[FN161] HUGUET & PUNPUING, supra note 58, at 36.

[FN162] Id.

[FN163] Id.

[FN164] Id.

[FN165] Id.

[FN166] Id.

[FN167] Interview with Daw Than Shwe, Burmese migrant, in Samut Songkrahm, Thail. (Aug. 7, 2005).

[FN168] Interview with Sein Min, supra note 138. Sein Min tries to send about 1,000-2,000 baht each month. His son is in school in Myanmar and to finance his education, it costs about 1,000 baht per month. Sein Min makes about 6,000 baht a month, most of it is spent on living expenses -- rent, electricity, water and food.

[FN169] See supra notes 31-35, 52-54.

[FN170] Interview with Maung Ko, supra note 136.

[FN171] Sukhumbhand Paribatra, Thail. Deputy Minister of Foreign Affairs, Address at the Conference on "Engaging Myanmar in East Asia" (Nov. 29, 1998), available at http://www.thaiembdc.org/pressctr/statemnt/others/dfm_1198.htm.

[FN172] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Dec. 18, 1990, 30 I.L.M. 1517 (entered into force July 1, 2003), available at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty25.asp.

[FN173] Art. 26 § 1(a) states that signatories must recognize the right of migrants and their families:
To take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protecting their economic, social, cultural and other interests, subject only to the rules of the organization concerned.

[FN174] Art. 27 § 1 states:
With respect to social security, migrant workers and members of their families shall enjoy in the State of employment the same treatment granted to nationals in so far as they fulfill the requirements provided for by the applicable legislation of that State and the applicable bilateral and multilateral treaties.

[FN175] Art. 22 § 9 states:
Expulsion from the State of employment shall not in itself prejudice any rights of a migrant worker or a member of his or her family acquired in accordance with the law of that State, including the right to receive wages and other entitlements due to him or her.

[FN176] Convention on the Reduction of Statelessness, Aug. 30, 1961, 360 U.N.T.S. 117, (entered into force Dec. 13, 1975), available at http://www.unhchr.ch/html/menu3/b/o_reduce.htm.

[FN177] Interview with Kate Jastram, Lecturer, Boalt Hall School of Law, in Berkeley, Cal. (Dec. 7, 2005).

[FN178] U.N. Treaty Collection, Feb. 5, 2002, available at http://www.unhchr.ch/html/menu3/b/treaty4_.htm.

This article is published with the kind permission of Bryant Yuan Fu Yang, Life and Death Away from the Golden Land: The Plight of Burmese Migrant Workers in Thailand, 8 Asian-Pac. L. & Pol’y J. 485 (2007).