Thailand Law Journal 2009 Spring Issue 1 Volume 12

For the most part, immigration laws, policies and practices are not used to keep people from Burma out, but to control them once they are in, by allowing undocumented workers to enter while exploiting the threat of expulsion.[FN113]“When immigration laws are enforced, women are criminalized by the receiving country, treated as illegal immigrants and deported. When they seek help from police and immigration officials, they are often subjected to further abuse and sexual violence.” [FN114] Arrests and deportation subject irregular migrants to further abuse, re-exploitation and risk of trafficking.

Despite publicized “crackdowns” from time to time . . . the involvement of officials, police, politicians, in trafficking and brothel ownership means that there is little effective action taken. While the traffickers get away with it, the women are arrested as prostitutes or illegal immigrants and are deported, with all that implies of abuse and further violation of rights en route and thence to punitive detention and imprisonment once they are back in Burma. [FN115] Legal labor status and protection are available to only a limited number of people from Burma despite Thailand's demand and dependence on cheap labor, including sex workers, to perform undesirable labor. “Thai entrepreneurs favour cheap Burmese labour as a means to reducing production costs. It is certain that Burmese workers have played a role of paramount importance in the economic growth of Thailand.”[FN116] However, Thailand's desire not to be overrun by an influx of poor neighbors means that its immigration and labor policy conflicts with its demand for cheap labor, leaving Burmese and other migrant workers subject to many forms of exploitation.

In terms of labor policy, Thailand has had a registration scheme since 1992 for undocumented migrants from Burma, Laos, and Cambodia to obtain temporary work permits from the Ministry of Interior.  Under the system, those granted work permits are entitled to Thailand's universal health care system and the same labor law protections as Thai workers, with the exception of being able to engage in collective bargaining or form trade unions.  However, the registration system is confusing and largely inaccessible.  The Migrant Action Program (MAP) Foundation notes key problems with the system. [FN117] The policy changes from year to year without notice through Cabinet Resolutions; even government officials may lack awareness and understanding. The registration scheme is largely underutilized, in large part because it is inaccessible. “In practice it is extremely difficult for the migrants to exercise these rights due to language barriers, isolation, corruption, fear, and lack of mechanisms in place for migrants to make official complaints.”  [FN118] Fear of arrests, deportations, and costs are other barriers. “The consequences are that migrants face exploitative working conditions, untreated health conditions, exposure to STI, HIV, and unwanted pregnancies because of the difficulties of regularly accessing contraception.” [FN119] Finally, the registration mechanism ties workers to a single employer. This increases workers' vulnerability to labor and sexual exploitation since they cannot complain against abuses by employers without sacrificing their registration and ability to remain in the country.

Another labor policy is the 2003 guest worker program under a series of bilateral Memoranda of Understanding (“MOUs”) between the government of Thailand and the governments of Burma, Laos, and Cambodia to regulate migrant workers. The Thai-Burmese MOU provides for employment of Burmese workers for up to four years and entitles them to the benefits and protections of Thai law. [FN120] However, the MOU has similar problems to the registration scheme. Additionally, workers must have citizenship and identity documents from their country of origin; in some cases, the sending country does not recognize its migrant workers who are already in Thailand, resulting in a number of stateless people who are ineligible for the guest worker program. [FN121] Furthermore, the registration fee of approximately US $100 is approximately three months of wages. This amount is often deducted from the workers' pay, creating a debt bondage situation. [FN122] Workers also have to pay for travel documents, visas, and work permits before they leave, which may lead to debt bondage in their own country. [FN123] Workers under the MOU face the same problem of guest workers everywhere--they ultimately have to return to their own country, from which they have been trying to escape in the first place. Failure to return to the home country results in a forfeiture of the mandatory deposit of 15% of their salary.

A final labor policy worth considering is the ability to sue for back pay of unpaid wages and to demand safe and fair working conditions.  However, these and other labor protections are not available for people in prostitution or domestic workers, which is the type of labor large numbers of migrant women find themselves in, and where much of the trafficking and other exploitation occurs.  As a result, they receive no protections and their working conditions are not reviewed by the labor department; they are isolated from society and protections.

Those who find work as domestic workers are potentially the most vulnerable of female migrant worker populations because they are the most hidden.  Often as young as 12 years old, these girls work long hours, for very little pay and in constant fear of ‘displeasing’ their employers who could then turn them into the police. Exploited financially and sexually, they fear arrest and persecution if they attempt to leave. [FN124] The ability to sue for back wages is also denied those who are trafficked into prostitution or domestic work. Unlike those who are trafficked for recognized labor, they are not entitled to recover the money earned but not paid. Thus, the legal system perpetrates an additional injustice against those escaping exploitation.

3. Working Conditions

The unavailability of labor protection for irregular migrants and undocumented workers makes them vulnerable to many forms of exploitation in their working conditions.  In addition, “the lack of enforcement of labor laws creates an environment where exploitative labour conditions flourish and where traffickers can move in and reap the benefits.”  [FN125]

[FN113]. See e.g., Modern Form of Slavery, supra note 23.

[FN114]. Seabrook, supra note 3, at 135.

[FN115]. Id. at 139.

[FN116]. Images Asia, supra note 52, at 19.

[FN117]. Somwong, supra note 67.

[FN118]. Mirgrant Action Program (MAP) Foundation, P.O. Box 7, Chiang Mai University, Chiang Mai 50208, Thailand (brochure) (on file with author).

[FN119]. Id.

[FN120]. See Memorandum of Understanding Between The Government of the Kingdom of Thailand and the Government of the Union of Myanmar on Cooperation in the Employment of Workers, June 21, 2003.

[FN121]. Somwong, supra note 67.

[FN122]. Migration News: Southeast Asia, http:// migration.ucdavis.edu/MN/more.php?id=2959_0_3_0 (last visited Apr. 7, 2006).

[FN123]. Somwong, supra note 67.

[FN124]. Fear and Hope, supra note 112, at 11.

[FN125]. Somwong, supra note 67.

This article is published with the kind permission of Christa Foster Crawford. The article originally appeared in Cardozo Journal of Law & Gender, Summer 2006 issue.