Effect of Illegal Immigrants

Undocumented migrants (as well as refugees, who are not recognised under Malaysian law) can be charged with criminal offenses and face imprisonment and floggings (Mydans 2007). According to human rights groups, "this punitive approach unfortunately replaces any full-fledged migration policy" (FIDH-SUARAM 2008, 7).

Detention policy. Immigration-related detention is regulated by the Prisons Act 1995 (Act 537), the Prisons Regulations 2000, and the Immigration (Administration and Management of Immigration Depots) Regulations 2003 (FIDH-SUARAM 2008, 7-8). There are three categories of immigration-related detention: internment; criminal imprisonment for offences under Malaysia's Immigration Act; and administrative detention prior to deportation (FIDH-SUARAM 2008, 14). Persons held in administrative detention centres include individuals arrested for not having valid documentation and awaiting a sentence; and people awaiting deportation after having served a prison sentence for illegal immigration (Suhakam 2003). While limitations on the length of internment before seeing a magistrate range from 28 to 30 days, persons subject to a deportation order can be held "for such a period as is necessary in order to make arrangements for his or her removal ... [h]ence, the detention can be indeterminate" (FIDH-SUARAM 2008, 14).The Immigration Act outlines specific crimes and their associated punishments, many of which are draconian. Section 6(1)(c), for example, provides the following punishment for entering and staying in Malaysia without a permit: "Fine not exceeding RM10,000 or ... imprisonment for a term not exceeding 5 years or ... both, and shall also be liable to whipping of not more than 6 strokes." Other crimes subject to flogging under the act include employing a person without a valid permit, forging identity documents, and harbouring a person who has violated the Immigration Act. Remaining in Malaysia after the expiration of an entry permit and "entry into and departure from Malaysia at an unauthorized landing place, airport or point of entry" carry the same punishment: "Fine not exceeding RM10,000 or ... imprisonment for a term not exceeding 5 years or ... both."

The limited rights afforded detainees have been criticised, including the lack of protections provided vulnerable groups. Immigration Regulation leaves the segregation of detainees according to age or sex to the discretion of the officer in charge of the immigration detention depot (FIDH-SUARAM 2008, 15). While immigration detention regulation foresees that children under 12 may remain with a parent in detention, no special provisions exist for adolescents or unaccompanied minors. In June 2007, a government delegation reported that 360 children were being held in immigration depots with their mothers (FIDH-SUARAM 2008, 16).

The detention of children and women, including those seeking asylum, has been harshly criticized by rights groups. In a joint "Memorandum to the Immigration Department of Malaysia" issued in late 2006, a host of national and international human rights NGOs wrote, "Through our investigations and from other credible sources, we have learned that the Immigration Department is detaining scores of asylum seeker children, pregnant women and other vulnerable individuals, mainly from Burma/Myanmar, at various detention camps and prisons around the country. Since April of 2006, we have recorded at least 13 mass-scale raids at different locations around the country by the Immigration Department and Rela (Malaysian People's Volunteer Corps). Also arrested and detained in these round-ups are children, mothers, pregnant women and other extremely vulnerable individuals who have come to this country for no other reason than to seek a safe haven from persecution and serious human rights violations in their home country. ... [T]he government has consistently tried to justify the detention of refugees and asylum seekers on the ground that they are illegal entrants and that Malaysian immigration law does not recognize their status as a special category of people who need international protection. This indiscriminate policy has rendered refugees and their children vulnerable and defenseless against exploitation, detention and deportation" (SUARAM et al 2006).

Malaysia has not adopted key international instruments that protect the rights of migrants. The country is not party to the 1951 Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees. Refugee status does not exist in Malaysian law, thus refugees are often treated as irregular immigrants (FIDH-SUARAM 2008, 7; HRW 2009). However, refugees who have been recognised by UNHCR and obtained UNHCR documents may nonetheless enjoy de facto protection at the national level (FIDH-SUARAM 2008, 9).

Since 2002, Malaysian authorities have sought to confront unauthorized immigration by alternating mass raids on illegal immigrants with brief amnesty periods, during which undocumented migrants can leave the country without danger of criminal charges under the Immigration Act being brought against